In re J.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES v. D.S. et al.
E074079
In the Court of Appeal of the State of California, Fourth Appellate District, Division Two
August 11, 2020
CERTIFIED FOR PARTIAL PUBLICATION. (Super.Ct.Nos. J-268832 & J-268833). Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.
OPINION
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant and Appellant A.W.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant D.S.
Michelle D. Blakemore, County Counsel, Michael A. Markel, Principal Assistant County Counsel, Jamila Bayati and David R. Guardado, Deputy County Counsel
In this appeal, we conclude that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA;
This juvenile dependency appeal follows the termination of parental rights over two half-sisters. A.W., the father of only the younger daughter, contends that the juvenile court failed to comply with the UCCJEA, such that Louisiana should have been the forum for the case. In addition, D.S. (Mother), the mother of both children, contends that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA;
The case begаn when, in December 2016, plaintiff and respondent San Bernardino Children and Family Services (CFS) learned that Mother had threatened to physically abuse J.W., the younger daughter, then one year old. Mother had called 911 and threatened to stab herself and J.W. Police officers detained Mother and temporarily committed her pursuant to
CFS’s detention reports stated that, just a few weeks prior, Mother had moved to California from Louisiana, where she had been living with A.W. (A later psychological evaluation specified that Mother had moved from Louisiana earlier that same month, December 2016.) According to a family friend, Mother was spiraling into depression in Louisiana and had mentioned relinquishing her children to the Louisiana Department of Children and Family Services. The family friend accordingly urged Mother to come live with her in California, which she did. The family friend also informed CFS that in 2010 Mother had suffered traumatic brain injuries requiring dozens of surgeries, from a car accident that killed Mother’s mother and sister. Since the accident, Mother had suffered from grand mal seizures and had been diagnosed with schizophrenia.
CFS filed
Because Mother and A.W. challenge only ICWA and UCCJEA deficiеncies, we need not describe in detail the parents’ subsequent progress. Family reunification services were terminated at the 18-month review hearing and parental rights were later terminated at a November 2019
II. ICWA
A. Additional Background
Counsel for L.M.’s father D.M. (who is not a party to this appeal) stated at a June 2018 hearing that D.M. might have Indian ancestry on his mother’s side. D.M. submitted forms indicating he may have Indian ancestry but did not know which tribes in particular. At the hearing, the juvenile court asked the social worker “to follow up with [D.M.’s] mother” to attempt to identify tribes and ordered D.M. “to keep the social worker advised of any information relating to possible Indian ancestry” he may obtain.
The following month, CFS informed the juvenile court the following: “‘[D.M.] stated he does not have any ICWA. He stated that he had heard from family members that the family did have ICWA and [D.M.] was informed that was not accurate. He regretted telling the Court that he had ICWA stating, [‘]Saying I had ICWA has caused me too many problems’.’” At a hearing a few days later, CFS confirmed that D.M. “really has no knowledge of any Indian ancestry at present.”
Two months later, D.M. submitted a form ICWA-020 (Parental Notification of Indian Status), checking the box next to the statement “I have no Indian ancestry as far as I know.” At the 18-month review hearing that same month, D.M. had the following exchange with the juvenile court:
“THE COURT: Now, as to [D.M.] —all right. I understand with respect to [D.M.], that he is uncertain as to Native American ancestry; is that correct?
“[D.M.]: Yes.
“THE COURT: So you’re not aware of a specific tribe?
“[D.M.]: No. I mean—I’m sorry. Basically, I’m not sure. [¶] I don’t think I have Indian in me at all. [¶] . . . [¶]
“[THE COURT]: So, [D.M.], what I want to be clear on, however, is that I saw а statement that the social worker quoted you saying, ‘Gee, I just raised all sorts of problems by saying, “I may have Native Indian ancestry.[”] So I shouldn’t have done that,’ in essence. [¶] So what I don’t want to have happen is that you’re indicating, ‘Yeah, there probably is and I’— ‘but, you know it causes too much of a hassle, so let’s just stop it.’ And I don’t want that to be your response. And here’s why, because if you can tell me today as you sit here that it is an accurate statement that you have no Indian ancestry as far as [you] know—
“[D.M.]: Yeah.
“THE COURT:—we’re good to go. [¶] But if you have information, if you have an understanding from family or otherwise that you may have Indian ancestry—
“[D.M.]: As far as I know, I don’t.
“THE COURT: And do you have any family members present today?
“[D.M.]: No.
“THE COURT: All right. So, again, that’s an accurate statement, ‘I have no Indian ancestry as far as I know.’
“[D.M.]: Correct.
“THE COURT: You have to answer verbally.
“[D.M.]: Yes, sir.
“THE COURT: All right. Then, the Court will go ahead and accept the notification of Indian status. And we will file it as of today’s date.”
B. Analysis
Mother contends that CFS did not satisfy its duty of inquiry with regard to D.M. We disagree.
“Juvenile courts and child protective agencies have ‘an affirmative and continuing duty to inquire’ whether a child for whom a [
Here, the record does not show that CFS ever interviewed D.M.’s mother regarding Indian ancestry despite being told to do so by the juvenile court. However, CFS no longer needed to interview D.M.’s mother after D.M. stated that his understanding that his family might have Indian ancestry was not accurate. (See In re C.A. (2018) 24 Cal.App.5th 511, 519 [duty of inquiry satisfied where a parent “initially indicate[s] that he may have had Native American heritage [but later] explain[s] that he had learned new information about his parents and did not have any Native American heritage”].) Moreover, the fact that D.M. “regretted” telling the juvenile court that ICWA might apply does not mean that CFS and the court were no longer entitled to rely on D.M.’s repeated representations. “ICWA does not obligate the court or [child protective agencies] ‘to cast about’ for investigative leads.” (In re A.M. (2020) 47 Cal.App.5th 303, 323.) Here, the duty of inquiry was satisfied when D.M. stated that as far as he knew he had no Indian ancestry, and when in response to the juvenile court’s questioning, D.M. stated that his changed response was not due to any “hassle” ICWA may have caused.
III. THE UCCJEA
A. Additional Background
In approximately 2014, Mother moved with her daughter L.M. from California, where they had lived for two years, to Louisiana. Mother lived in Louisiana for another two years, and J.W. was born in Louisiana during that time. As far as the record reveals, Mother has been living in California since the petitions were filed in December 2016.
In the detention report, CFS stated that it spoke with A.W., who stated he was living in Louisiana. A.W. was also listed as having a Louisiana address in the jurisdictional/dispositional report and the six-month review rеport, but at some point before the 12-month review report was filed, A.W. had moved to California into an apartment he shared with Mother. A.W. has provided California addresses since then.
B. Analysis
The UCCJEA is a model law that “arose out of a conference of states in an attempt to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out
“The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions.” (In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348; see also
A.W. contends for the first time on appeal that the juvenile court lacked jurisdiction under the UCCJEA and that, as a result, all findings and orders made by the juvenile court as to J.W. must be reversed. We decline to address this contention on the merits. Instead, we hold that, even assuming the juvenile court lacked UCCJEA jurisdiction, A.W. has forfeited the ability to raise the argument here. Forfeiture would not apply if the UCCJEA provisions governing jurisdiction implicated the courts’ fundamental jurisdiction, but, as we explain, they do not.4
In Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330 (Kabran), our Supreme Court emphasized the difference between a court’s fundamental jurisdiction and the mandatory jurisdictional rules that the court must apply. The court explained that the label “jurisdiction” has multiple meanings: “‘“When courts use the phrase ‘lack of jurisdiction,’ they are usually referring to one of two different concepts, although . . . the distinction between them is ‘hazy.’” [Citation.]’ [Citation.] A lack of fundamental jurisdiction is ‘“‘“‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] . . . ” [¶] “[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court’s jurisdiction in the fundamental sense is null and void” ab initio. [Citation.] “Therefore, a claim based on a lack of . . . fundamental jurisdiction[] may be raised for the first time on appeal. [Citation.]”’ [Citation.] Likewise, ‘a collateral attack on a final judgment may be made at any time when the judgment under challenge is void because of an absence of “fundamental jurisdiction.”’”’ (Id. at p. 339.)
Apart from distinguishing rules by whether they implicate fundamental jurisdiction, “[i]n interpreting statutory requirements, courts have also used the terms ‘mandatory’ and ‘directory.’ Whether a requirement is mandatory or directory is determined largely by its effect: ‘If the failure to comply with a particular procedural step does not invalidate the action ultimately taken, . . . the procedural requirement is referred to as “directory.” If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed “mandatory.”’” (Kabran, supra, 2 Cal.5th at p. 340.)
The fact that a jurisdiction requirement is mandatory, however, does not mean that it implicates fundamental jurisdiction. Kabran held that “a party’s failure to comply with a mandatory requirement ‘does not necessarily mean a court loses fundamental jurisdiction resulting in “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”’ [Citation.] It is a ‘misuse of the term “jurisdictional” . . . to treat it as synonymous with “mandatory”’ as a general matter. [Citation.] ‘There are many time provisions, e.g., in procedural rules, that are not directory but mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void’ in a fundamental sense. [Citations.] The [United States Supreme Court] has similarly recognized, as a matter of federal law, that ‘mandatory’ rules should not always ‘be given the jurisdictional brand.’” (Kabran, supra, 2 Cal.5th at p. 341.)
“‘There is “‘no simple, mechanical test’”’” for determining whether a specifiс requirement is jurisdictional or not, but “[t]he question is ultimately one of legislative intent.” (Kabran, supra, 2 Cal.5th at p. 343; see also Garrison v. Rourke (1948) 32 Cal.2d 430, 435 [courts’ vested jurisdiction “may not lightly be deemed to have been destroyed”], overruled on another ground in Keane v. Smith (1971) 4 Cal.3d 932, 939.)
In then applying this framework, Kabran held that a provision in the Code of Civil Procedure did not implicate fundamental jurisdiction and that, as a result, a party was precluded from raising a violation of it for the first time on appeal. (Kabran, supra, 2 Cal.5th at p. 334.) As Kabran made clear, the only rules not subject to forfeiture are those conferring fundamental jurisdiction.
2. The UCCJEA and Fundamental Jurisdiction
It is clear enough that the rules governing jurisdiction in the UCCJEA are mandatory. Given that the main goals of the UCCJEA include “avoid[ing] jurisdictional competition [and] relitigation of another state’s or country’s custody decisions” (In re Gloria A., supra, 213 Cal.App.4th at p. 482), ensuring that only one state exercise jurisdiction at a time outside of emergencies is a crucial part of how the UCCJEA is supposed to function. (See
However, although the jurisdictional rules of the UCCJEA are mandatory, we are not persuaded that the Legislature intended them to be used in California in a manner that implicates a court’s fundamental jurisdiction. In this state, fundamental jurisdiction over juvenile dependency cases such as this is governed by
The UCCJEA, on the other hand, embodies an agreement among states on rules to determine which jurisdiction should provide the proper forum. (See In re Custody of A.C., supra, 165 Wn.2d at p. 574 [UCCJEA “arose out of a conference of states”]; cf. Alexander v. Superior Court (2003) 114 Cal.App.4th 723, 727 [“a forum selection clause usually chooses a court from among different states or nations”].) Because it is a mandatory rule, a court errs when it does not satisfy the requirements of the UCCJEA, and a preserved error can lead to reversal. (See Kabran, supra, 2 Cal.5th at p. 341; People v. Lara (2010) 48 Cal.4th 216, 228 [noting that mandatory rules are not subject to “good cause” exceptions].) But where, as here, the UCCJEA is not raised in the juvenile court, it can be forfeited just like other important, mandatory rules. (See Kabran, at p. 334.)
Another case from our Supreme Court offers a compelling analogy to our reasoning. In County of San Diego v. State of California, supra, 15 Cal.4th, 68, 85-90 (County of San Diego), the court considered the effect of violating statutory procedures enacted to determine through a “test claim” which forum was to apply
Although it did not use the term, County of San Diego effectively determined that the rule against multiple proceedings was mandatory, as “[a] contrary conclusion would undermine one of ‘the express purpose[s]’ of the statutory procedure: to ‘avoid[] multiple proceedings . . . addressing the same claim that a reimbursable state mandate has been created.’” (County of San Diego, supra, 15th Cal.4th at p. 87; see City of Monica v. Gonzalez, supra, 43 Cal.4th at p. 924 [“‘If the procedure is essential to promote the statutory design, it is ‘mandatory’ and noncompliance has an invalidating effect.’”].) It therefore held that the trial court “should not have proceeded to resolve San Diеgo’s claim for reimbursement under section 6 while the [earlier] Los Angeles action was pending.” (County of San Diego, supra, at p. 87.)
However, the court rejected the “assertion that the error was jurisdictional.” (County of San Diego, supra, 15 Cal.4th at p. 87.) Citing the rule that vested jurisdiction “‘may not lightly be deemed to have been destroyed’” and “find[ing] no statutory provision that either ‘expressly provide[s]’ [citation] or otherwise ‘clearly indicate[s] [citation] that the Legislature intended to divest all courts other than the court hearing the test claim” of fundamental jurisdiction, County of San Diego held that the trial court’s “erroneous refusal to stay further proceedings [did] not render those further proceedings void” for lack of fundamental jurisdiction. (Id. at pp. 87-88.)
County of San Diego thus concluded in effect that the test claim procedure, which sought to prevent “unnecessary” and “multiple” рroceedings, “inconsistent rulings,” and “delays” of relief, was a mandatory rule, but not one implicating fundamental jurisdiction. (County of San Diego, supra, 15 Cal.4th. at pp. 86-87; see also Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 119-122 [although “prime purpose” of a “mandatory venue provision” was to “protect absent defendants from default judgments obtained in improper counties,” provision accomplishes its purpose “not by rendering void all judgments obtained in improper counties, but by placing an independent responsibility on the trial court to scrutinize all complaints, even when no change of venue motion is filed”]; People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770, 772 [the “rule of exclusive concurrent jurisdiction,” which is
It is conceivable that in some context, the Legislature could intend that a forum selection statute create fundamental jurisdiction, unlike in County of San Diego. But we do not think that this could be so in the juvenile dependency context at issue here. In dependency law, our Legislature has placed a particular emphasis on the need to make orders terminating parental rights final. This leads us to conclude that, as with the forum selection statutes in County of San Diego, the Legislature did not intend to make UCCJEA jurisdiction a matter of fundamental jurisdiction on top of the fundamental jurisdiction established by
By operation of its express terms,
The Legislature has restricted collateral attacks on termination orders because both the state and the child have exceptionally strong interests in making sure the matter is determined conclusively. As the United States Supreme Court has emphasized, “[t]he State’s interest in finality is unusually strong in child-custody disputes,” and “[t]here is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current ‘home,’ under the care of his parents or foster parents, especially when such uncertainty is prolonged.” (Lehman v. Lycoming County Children’s Services Agency (1982) 458 U.S. 502, 513-514.) Our Supreme Court has stressed the importance of finality in the dependency context as well, noting that in such matters the state’s “interest in expeditiousness is strong indeed,” but that “[i]ts interest in finality is stronger still.” (In re Sade C. (1996) 13 Cal.4th 952, 993; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 [“Because [dependency] proceedings involve the well being of children, considerations such as permanency and stability are of paramount importance.”]; In re Jerred H. (2004) 121 Cal.App.4th 793, 799 [“our Supreme Court has emphatically recognized” the importance of the “finality” of a termination order]; In re Cody B. (2007) 153 Cal.App.4th 1004, 1011 [noting “public policy in preserving the finality of termination judgments”].)
A finding that a termination order entered without UCCJEA jurisdiction was “‘“null and void” ab initio’” (Kabran, supra, 2 Cal.5th at p. 339) would core these public policy considerations. Years, perhaps a decade or more, after parental rights are terminated and a child has been adopted, an aggrieved party could contend that the adoption and termination orders must be reversed because, for instance, the child did not actually live in this state in the six months before the dependency petition was filed. (See
If jurisdiction under the UCCJEA equated to fundamental jurisdiction, whether a juvenile court’s error in deciding jurisdiction was harmless would be irrelevant. Any judgment made by a court lacking fundamental jurisdiction must be reversed, regardless of harm. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 199, fn. 10 [rejecting notion that lack of fundamental jurisdiction can be cured by harmless error analysis].) The absence of any indication of harm here, however, underscores why the Legislature likely did not intend California’s UCCJEA to govern fundamental jurisdiction.
The record indicates that Louisiana rather than California likely had UCCJEA jurisdiction over J.W., as the record indicates J.W. was born there in 2015 and moved in Deсember 2016 while A.W. remained in Louisiana. (See
3. The UCCJEA and Subject Matter Jurisdiction
In deciding this case, we do not write on a blank slate, and we acknowledge that there are reasons why one might contend the UCCJEA should be read as governing fundamental jurisdiction. For one,
Moreover, courts in this state and others have equated UCCJEA jurisdiction with subject matter jurisdiction. (See, e.g., In re Aiden L., supra, 16 Cal.App.5th at p. 516; In re R.L., supra, 4 Cal.App.5th at p. 136; Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1316-1317 (Brewer); In re Gloria A., supra, 213 Cal.App.4th at p. 481; In re Jaheim B., supra, 169 Cal.App.4th at p. 1348; H.T. v. Cleburne County Dept. of Human Resources (Ala. Civ. App. 2014) 163 So.3d 1054, 1061; Stauffer v. Temperle (Iowa Ct. App. 2010) 794 N.W.2d 317, 321; Officer v. Blankenship (Ky. Ct. App. 2018) 555 S.W.3d 449; Schroeder v. Schroeder (Minn. Ct. App. 2003) 658 N.W.2d 909; Friedman v. Eighth Judicial Dist. Court of State, ex rel. County of Clark (Nev. 2011) 127 Nev. 842; In re Guardianship of K.B., supra, 2019 N.H. LEXIS 218; Gharachorloo v. Akhavan (N.Y. App. Div. 2009) 67 A.D.3d 1013; Harshberger v. Harshberger (N.D. 2006) 724 N.W.2d 148; Rosen v. Celebrezze (Ohio 2008) 883 N.E.2d 420 (per curiam); Rosen v. Rosen (W.Va. 2008) 222 W.Va. 402; Harignordoquy v. Barlow (Wyo. 2013) 313 P.3d 1265.) Looked at loosely, these items suggest we should construe the
However, there is no broad uniformity among the states on this issue. As the Texas Supreme Court recently stated, “of the states that have considered the jurisdictional issue, some refer to the UCCJEA as a subject-matter-jurisdiction statute, while others do not. The issue is not settled.” (In the Interest of D.S. (Tex. May 8, 2020, No. 18-0908) 2020 Tex.LEXIS 396, at p.*20, footnotes listing cases omitted.)
“Moreover”—and more importantly—“of the cases declaring [the] UCCJEA to be a jurisdictional statute, . . . none devote analysis to why the statute is jurisdictional.” (In the Interest of D.S., supra, 2020 Tex.LEXIS 396 at p. *20, fn. 83.) Our own analysis reaches a similar conclusion: although some have cited the UCCJEA drafters’ single comment noting subject matter jurisdiction (see, e.g., In re Guardianship of K.B., supra, 2019 N.H. LEXIS 218 at p.*3; Harshberger v. Harshberger, supra, 724 N.W. at p. 153), most cases, including those in California, have not considered the issue in detail. In these cases, moreover, courts have equated UCCJEA jurisdiction with subject matter jurisdiction in situations where our distinction between mandatory rules and fundamental jurisdiction would not have affected the result. (See, e.g., In re R.L., supra, 4 Cal.App.5th at p. 145 [affirming UCCJEA jurisdiction]; Brewer, supra, 218 Cal.App.4th at pp. 1320-1321 [reversing for lack of evidence on inconvenient forum determination]; In re Gloria A., supra, 213 Cal.App.4th at pp. 480, 484 [reversing for lack of UCCJEA jurisdiction where issue was raised below]; In re Jaheim B., supra, 169 Cal.App.4th at p. 1350 [affirming UCCJEA jurisdiction]; H.T. v. Cleburne County Dept. of Human Resources, supra, 163 So.3d at p. 1067 [same]; Jackson v. Sanomi (Ga. 2013) 292 Ga. 888, 889 [affirming lack of UCCJEA jurisdiction]; Stauffer v. Temperle, supra, 794 N.W.2d at pp. 319-323 [reversing for lack of UCCJEA jurisdiction where issue was raised below]; Schroeder v. Schroeder (Minn. Ct. App. 2003) 658 N.W.2d at pp. 911-913 [same]; Friedman v. Eighth Judicial Dist. Court of Nev. (Nev. 2011) 127 Nev. at p. 845, 854 [granting writs in light of lower court’s erroneous assertion of UCCJEA jurisdiction]; Officer v. Blankenship, supra, 555 S.W.3d at pp. 452-453, 458-459 [reversing for lack of UCCJEA jurisdiction where issue was raised below]; Gharachorloo v. Akhavan, supra, 67 A.D.3d at p. 1014 [affirming lack of UCCJEA jurisdiction]; Harshberger v. Harshberger, supra, 724 N.W.2d at pp. 152, 157 [reversing for lack of UCCJEA jurisdiction where issue was raised belоw]; Rosen v. Celebreeze, supra, 883 N.E.2d at pp. 242, 250 [same]; Rosen v. Rosen, supra, 222 W.Va. at pp. 405, 407 [affirming UCCJEA jurisdiction]; Harignordoquy v. Barlow, supra, 313 P.3d at pp. 1268-1269 [same].)
Only in a few cases we have come across could a determination that UCCJEA jurisdiction is not fundamental jurisdiction have reasonably changed the result, but even in some of these courts have presumed UCCJEA jurisdiction to be fundamental without extended analysis. (See In re Guardianship of K.B., supra, 2019 N.H. LEXIS 218 at *3-*4 [trial court denied petition to modify or terminate guardianship filed by biological mother with no clear indication UCCJEA jurisdiction was raised; New Hampshire Supreme Court ordered petition dismissed for lack of UCCJEA jurisdiction and did not reach merits]; In re Aiden L., supra, 16 Cal.App.5th at pp. 512, 516, 520-521, 523 [vacating termination orders where agency did not raise, and juvenile court did not address, UCCJEA jurisdiction, but equated UCCJEA jurisdiction with fundamental jurisdiction in passing].) Thus, upon closer inspection, the determinative issue is actually not so much split among courts as it is simply undecided.
Finally, as we have earlier discussed, “jurisdiction” can mean different things, and we can find no indication in the legislative history that our Legislature intended “jurisdiction” in
Given the lack of an articulated reason in our cases why UCCJEA should be seen as governing nonwaivable, nonforfeitable, fundamental jurisdiction—as opposed to a mandatory rule that is waivable and forfeitable—as well as the heavy finality interests at stake, we do not follow the language in those cases that seem to equate UCCJEA jurisdiction with fundamental jurisdiction. Instead, we agree with those cases that hold that the UCCJEA does not implicate fundamental jurisdiction. (See Kenda v. Pleskovic (D.C. Ct. App. 2012) 39 A.3d 1249, 1253-1257 [holding that a party who “avail[ed] herself” of an Indiana court’s jurisdiction is “judicially estopped” from challenging that jurisdiction in the District of Columbia]; McCormick v. Robertson (Ill. 2015) 28 N.E.3d 795, 803 [“As used in the statute, ‘jurisdiction’ must be understood as simply a procedural limit on when the court may hear initial custody matters, not a precondition to the exercise of the court’s inherent authority.”]; Williams v. Williams (Ind. 1990) 555 N.E.2d 142, 145 [“The jurisdictional limitations imposed by the [predecessor act to the UCCJEA] are not equivalent to
its courts. But given the statutory scheme in our state, we do not construe California’s UCCJEA in such a way.
4. The UCCJEA and Waiver
As a final point, we note that our cases have stated UCCJEA jurisdiction may not be conferred by mere presence of the parties or by stipulation, consent, waiver or estoppel. (See, e.g., In re Aiden L., supra, 16 Cal.App.5th at p. 516; In re R.L., supra, 4 Cal.App.5th at p. 136; Schneer v. Llaurado, supra, 242 Cal.App.4th at p. 1287; In re A.M., supra, 224 Cal.App.4th at p. 598; Brewer, supra, 218 Cal.App.4th at p. 1317; In re A.C., supra, 130 Cal.App.4th at p. 860.) That proposition is consistent with the conclusion that UCCJEA jurisdiction is fundamental jurisdiction, as “‘“[f]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent”’” (Kabran, supra, 2 Cal.5th at p. 339).
However, the case establishing the proposition in thе UCCJEA context was In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259 (Marriage of Ben-Yehoshua), where, in interpreting the predecessor to the UCCJEA, the Court of Appeal stated that “there is no provision in [the predecessor act] for jurisdiction to be established by reason of the presence of
Over time, however, this statement from Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d 259 has evolved into a statement that UCCJEA jurisdiction can never arise from stipulation, consent, waiver or estoppel. Such a broad rule is not supported by Marriage of Ben-Yehoshua or the UCCJEA itself. (Compare Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1013-1014 [citing Marriage of Ben-Yehoshua for the statement that “[t]here is no provision in [the predecessor act] for jurisdiction to be established by reason of the presence of the parties or by stipulation or consent”] with In re A.C., supra, 130 Cal.App.4th at p. 860 [citing Plas and Ben-Yehoshua for the statement that UCCJEA jurisdiction “cannot be conferred by stipulation, consent, waiver, or estoppel”].) The UCCJEA merely contains no provision affirmatively providing for jurisdiction by such means, and it does not go further. The absence of such a provision in the UCCJEA does not mean that it establishes fundamental jurisdiction. Accordingly, the UCCJEA does not require that a parent such as A.W. should be allowed to silently accede to jurisdiction, or neglect to raise it, for years while parental fitness is adjudicated, only to assert a lack of jurisdiction for the first time after a termination order. We therefore find that the Marriage of Ben-Yehoshua rule does not show that UCCJEA jurisdiction is fundamental jurisdiction.
5. Conclusion
The UCCJEA does not govern fundamental jurisdiction. As a result, A.W.’s contention that the juvenile court lacked UCCJEA jurisdiction “cannot be raised for the first time on appeal” (Kabran, supra, 2 Cal.5th at p. 347). The issue has been forfeited.
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
RAPHAEL J.
We concur:
RAMIREZ P. J.
FIELDS J.