In re R.L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CYNTHIA C. et al., Defendants and Appellants.
No. D069729
Fourth Dist., Div. One.
Oct. 14, 2016.
125
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia C.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo L.
OPINION
HALLER, J.—Cynthia C. and Gerardo L. appeal from orders terminating parental rights to their daughter, R.L. Gerardo contends the jurisdictional and dispositional findings and orders, and all subsequent orders, must be reversed because the juvenile court did not have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act,
The facts of this case present an interesting issue concerning “home state” jurisdiction, as defined by the UCCJEA. R.L. was born in a hospital in San Diego County. Her mother, Cynthia, is a United States citizen. For approximately three years prior to R.L.‘s birth, Cynthia did not have a permanent residence. She alternated her time between Tijuana and Las Vegas, but had been primarily living in Tijuana in the months preceding R.L.‘s birth. R.L.‘s father, Gerardo, is a Mexican national who stayed at various places in Baja California, including an aunt‘s home in Tijuana. Gerardo could not legally enter the United States. During the juvenile dependency proceedings, both parents became incarcerated. Gerardo was in prison in Baja California. Cynthia was in federal prison in San Diego County. Upon her release from prison, she was prohibited from entering Mexico for three years.
For reasons we shall explain, we conclude that the juvenile court erred when it determined that California was R.L.‘s home state under
We also conclude that the error does not require reversal. The juvenile court had emergency jurisdiction under
Finally, we reject Gerardo‘s claim he did not receive proper notice of the proceedings. The Hague Service Convention does not apply where the parent‘s whereabouts are unknown and a diligent search has been made to locate the parent. The record clearly shows the San Diego County Health and Human Services Agency (Agency) diligently tried to locate Gerardo from the time R.L. was detained in protective custody. Moreover, when Gerardo‘s whereabouts became known, the Hague Service Convention did not apply because Gerardo voluntarily submitted to the jurisdiction of the juvenile court. We therefore affirm the orders terminating parental rights and freeing R.L. for adoption by her caregivers.
FACTUAL AND PROCEDURAL BACKGROUND
Cynthia C. is the mother of R.L., who is now two years old. Cynthia, a United States citizen, entered California from Mexico to give birth to R.L., who was born at Sharp Chula Vista Medical Center in San Diego County in August 2014. Cynthia and R.L. tested positive for amphetamine and methamphetamine. The Agency detained R.L. in protective custody in a foster home and filed a petition alleging inadequate care. (
Cynthia admitted she had a 15-year history of methamphetamine use. She blamed her positive test on secondhand exposure to methamphetamine, explaining that all the people with whom she lived in Tijuana, Baja California, Mexico, smoked methamphetamine. She later admitted using methamphetamine during her pregnancy with R.L. Cynthia had some clothing for the baby but lacked other supplies, including a car seat. She had no income. Cynthia said her home in Tijuana was not a safe place for the baby, and she would never take her there. She hoped to find a place to live in the San Diego area. Cynthia said her relatives in Tijuana were drug users, but she had other relatives in California and Mexico.
Cynthia alleged Gerardo L. was R.L.‘s father. Gerardo was a Mexican national who lived in Tijuana with his aunt (Aunt). Cynthia provided Aunt‘s telephone number to the social worker, who telephoned Aunt. Aunt said she would contact Gerardo and ask him to telephone the social worker. The social worker did not hear from Gerardo. Cynthia said Gerardo sometimes came to
At the September 5, 2014, detention hearing, the juvenile court found that R.L. had only lived in California and thus California was R.L.‘s home state under
In an interview with a social worker on September 11, 2014, Cynthia said she traveled between Las Vegas, Nevada and Tijuana, Baja California, Mexico, for almost three years to care for her grandmother, who passed away in February 2014. Thereafter she lived in her uncle‘s house in Tijuana for almost seven months. In mid-August, Cynthia went to her mother‘s home in Las Vegas, Nevada, hoping to give birth there. While in Las Vegas, Cynthia had a prenatal visit and an ultrasound. She had not received any prenatal care in Mexico. Cynthia returned to Tijuana before the baby was born.
Cynthia told the social worker she had not had any contact with Gerardo since R.L.‘s birth and was unable to locate him. On September 22, the social worker submitted parent search and international liaison search requests to locate Gerardo. On October 15, the social worker telephoned Aunt to inquire about Gerardo‘s whereabouts. Aunt said she had not seen Gerardo for several months and did not know where he was. The Agency‘s international liaison office could not locate Gerardo through the Mexican civil registry because it did not have Gerardo‘s place of birth. The Agency sent a request to the Mexican consulate to search the civil registry, but the consulate was unable to locate Gerardo‘s records.
At the jurisdictional and dispositional hearing on October 28, 2014, the juvenile court sustained the
After that hearing, the Agency continued its efforts to locate Gerardo. On November 12, 2014, the international liaison sent a request to the Mexican social services agency (DIF) in Tijuana asking them to conduct a home visit and to publish a media announcement if they could not locate Gerardo. A DIF social worker went to Cynthia‘s address. There, she spoke to a man who told her Gerardo lived with his family in a pink house down the street. The social worker then went to the pink house, which was Aunt‘s home. Aunt said Gerardo was addicted to crystal methamphetamine and she had directed him
On January 8, 2015, the Agency received a media announcement confirmation from DIF. Gerardo did not respond to the media announcement.
In reports prepared for the six-month review hearing, the Agency recommended the juvenile court terminate Cynthia‘s reunification services and set a hearing to select and implement a permanency plan under
At the six-month review hearing on May 20, 2015, the juvenile court found that reasonable efforts were made to locate and notify Gerardo of the proceedings. The court also found that Cynthia had failed to contact and visit R.L. for six months, terminated reunification services, and set a
In August 2015, the social worker received two letters from Cynthia stating she was in federal custody in San Diego. Cynthia was detained by United States authorities in May for crossing the international border with drugs. After learning that Cynthia was incarcerated in San Diego, the Agency facilitated visits between Cynthia and R.L. Cynthia remained behind a plexiglass partition while she watched R.L. play. Cynthia also tried to talk to R.L. by telephone.
In August, the Agency learned that Gerardo had been incarcerated in prison in Baja California since March 2015. On August 19, Gerardo was personally served with notice the Agency was recommending termination of parental rights and adoption, and a hearing was scheduled for September 15. Gerardo signed the notice acknowledging personal receipt of the notice of hearing and waived his right to 45-day notice of the hearing date.
On September 25 and 29, 2015, Gerardo left messages on the social worker‘s voicemail requesting a paternity test and a court-appointed attorney. At a hearing on October 8, the juvenile court appointed an attorney for Gerardo. Minor‘s counsel asked the court to order Gerardo to undergo a paternity test. On October 16, Gerardo left another message with the social worker requesting a paternity test and asking the Agency to place R.L. with his cousin. At a later hearing, the court asked Cynthia whether she objected to
At a hearing on October 28, 2015, after speaking with Gerardo, his attorney entered a general denial and said he would be objecting to the juvenile court‘s prior notice findings. The attorney said he read the petition to Gerardo and was able to briefly discuss the case with him. The record shows that Gerardo did not challenge the notice findings in juvenile court. The court continued the
The
Cynthia and Gerardo did not present affirmative evidence and did not cross-examine the social worker. Cynthia said she expected to be released from federal custody on condition she not return to Mexico for three years.
The juvenile court found that R.L. was adoptable and terminated parental rights. The court designated R.L.‘s foster parents as her prospective adoptive parents.
DISCUSSION
I. THE UCCJEA
A. The Parties’ Contentions
Gerardo contends the juvenile court erred in asserting home state jurisdiction under
The Agency argues the juvenile court correctly determined California was R.L.‘s home state under
B. Home State Jurisdiction
1. Applicable Legal Principles and Standard of Review
The UCCJEA “is the exclusive method of determining the proper forum in custody disputes involving other jurisdictions and governs juvenile dependency proceedings.” (C.T., supra, 100 Cal.App.4th at p. 106.) The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation of custody decisions, promote cooperation between states, and facilitate enforcement of another state‘s custody decrees. (In re Gloria A. (2013) 213 Cal.App.4th 476, 482 [152 Cal.Rptr.3d 550].) Foreign countries are treated as states for the purpose of determining jurisdiction. (
“Subject matter jurisdiction either exists or does not exist at the time the action is commenced and cannot be conferred by stipulation, consent, waiver or estoppel.” (In re A.M. (2014) 224 Cal.App.4th 593, 598 [168 Cal.Rptr.3d 494] (A.M.).) We are not bound by the juvenile court‘s findings regarding subject matter jurisdiction but independently reweigh the jurisdictional facts. (In re A.C. (2005) 130 Cal.App.4th 854, 860 [30 Cal.Rptr.3d 431].)
A state court has jurisdiction to make an initial custody determination, except as otherwise provided in
“(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
“(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.
“(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.
“(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).” (
2. California Does Not Have Jurisdiction Under Section 3421, Subdivision (a)(1): A Temporary Hospital Stay in a State Incident to Birth, by Itself, Is Insufficient to Confer Home State Jurisdiction
The juvenile court found that California was R.L.‘s home state under
The UCCJEA defines “home state” as “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 child less than six months of age, the term means the state in which the child lived from birth with [a parent or person acting as a parent]. A period of temporary absence of any of the mentioned persons is part of the period.” (
“Person acting as a parent” is “a person, other than a parent, who: (1) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year
The issue whether the phrase “lived from birth with a parent or a person acting as a parent” includes a temporary hospital stay incident to birth is a matter of statutory interpretation, which we review de novo. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 [7 Cal.Rptr.2d 531, 828 P.2d 672].) “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] ‘In determining intent, we look first to the language of the statute, giving effect to its “plain meaning.“‘” (Id. at p. 562.) “If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196].) “If the statute‘s language is ambiguous, we examine additional sources of information to determine the Legislature‘s intent in drafting the statute.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147 [74 Cal.Rptr.3d 81, 179 P.3d 882].)
In applying and construing the UCCJEA, we give consideration “to the need to promote uniformity of the law with respect to its subject matter among states that enact it.” (
In R.P., the mother of the child lived in Missouri and was involved in dependency proceedings for her other children. The mother went to Kansas to give birth to R.P. The reviewing court held that Kansas did not have home state jurisdiction because R.P. did not live with her parents during her two-day hospital stay. (R.P., supra, 966 S.W.2d at pp. 294, 300.)
In D.S., the child‘s mother lived in Illinois. Her eight other children were not in her care. Afraid that child protective services would take custody of her baby, the mother made plans to move to Tennessee. When her doctor told her it was time to go to the hospital, she left for Tennessee. En route and in labor,
The Illinois Supreme Court rejected respondent‘s suggestion the term ” ‘live’ ” means simply ” ‘to be alive,’ ” and held that the phrase ” ‘lived from birth’ ” meant something akin ” ‘to occupy a home.’ ” (D.S., supra, 840 N.E.2d at p. 1222.) Relying in part on R.P., the Illinois Supreme Court held that “[b]y itself, a temporary hospital stay incident to delivery is simply insufficient to confer ‘home state’ jurisdiction under the UCCJEA.” (Ibid.)
The UCCJEA defines “home state” as where the child “lived from birth with [a parent or a person acting as a parent.]” (
We reject the Agency‘s argument California was R.L.‘s home state because she lived with “a person acting as a parent” in California following birth. The Agency contends it had a right to legal custody of R.L. under its emergency powers and was therefore “a person acting as a parent.” While the Agency may temporarily detain a child in protective custody, it has no right to legal custody unless it files a dependency petition under
3. The Juvenile Court Did Not Have Significant Connection Jurisdiction
The Agency argues jurisdiction was proper under
To have jurisdiction under the significant connection provision, as relevant here, a court of another state must not have “home state” jurisdiction, and the child and the child‘s parents, or the child and at least one parent or a person acting as a parent, must have a significant connection with this state other than mere physical presence. (
The first issue is whether the other state—Mexico—has home state jurisdiction under
In In re Marriage of Arnold & Cully, supra, 222 Cal.App.3d 499, a family court custody dispute involving actions in Canada and California, the reviewing court concluded that the two-year-old child had the requisite significant connection solely with Canada. Although the noncustodial parent resided in California and the child visited California, the child was born in Canada and had lived exclusively in Canada. Therefore, Canada had subject matter jurisdiction. (Id. at p. 501; Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955-956 [92 Cal.Rptr.2d 182].)
However, for the provision to apply, at least one parent must have a significant connection to California, other than mere physical presence. Although Cynthia purposefully sought medical care for herself and R.L. in California, she did not remain in the state. (See In re S.W. (2007) 148 Cal.App.4th 1501, 1510–1511 [56 Cal.Rptr.3d 665] [subject matter jurisdiction appropriate where mother sought welfare in California and she and her children were residing in the state when dependency proceedings began].) The phrase “other than mere physical presence” in
C. Emergency Jurisdiction
At our request, the parties submitted additional briefing addressing the question: “To what extent does the juvenile court have temporary emergency jurisdiction under Family Code section 3424, subdivisions (a) and (b)?”
Cynthia concedes emergency jurisdiction would have been appropriate had the juvenile court held an evidentiary hearing on emergency jurisdiction. She argues if the juvenile court had assumed emergency jurisdiction, it would not have had the authority to make a permanent custody order.
The Agency submits the juvenile court had temporary emergency jurisdiction based on its findings at the detention hearing. The Agency argues temporary jurisdiction continued and became a final custody determination because no other state had grounds for jurisdiction.
Legal Standards
“Section 3424 provides an exception to the exclusive jurisdictional bases for making a child custody determination in California.” (In re A.M., supra, 224 Cal.App.4th at p. 599.) “A court of this state has 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.” (
Before a child custody determination is made under
As relevant here,
A court of this state can properly exercise emergency jurisdiction under
Failure to comply with the procedural requirements of the UCCJEA is subject to harmless error analysis. (Cristian I., supra, 224 Cal.App.4th at pp. 1102-1103.) Cynthia and Gerardo must show it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836; In re M.M. (2015) 240 Cal.App.4th 703, 717–718 [192 Cal.Rptr.3d 849] [harmless error test set forth in Watson applies to UCCJEA procedural error].)
D. Analysis
At the detention hearing, the juvenile court found that R.L.‘s removal from Cynthia‘s care was required because there was a substantial danger to the physical health of the child, and there were no reasonable means to protect her without removal from parental custody. This finding provides a sufficient basis for assumption of emergency jurisdiction, which requires a finding that the child is “subjected to, or threatened with, mistreatment or abuse.” (
In A.M., the parents and the children had lived in Mexico for at least six months, and Mexico clearly was the children‘s home state. (A.M., supra, 224 Cal.App.4th at p. 596section 3421. However, because the juvenile court had emergency jurisdiction, the error was harmless. (Id., at p. 598.) We affirmed the jurisdictional and dispositional orders, and conditionally remanded the matter for the limited purpose of contacting the Mexican authorities to determine whether Mexico wished to assume jurisdiction. (Id. at p. 599.)
Here, too, the juvenile court had emergency jurisdiction under
Here, because the juvenile court had temporary emergency jurisdiction and no child custody action was filed in Mexico, and Cynthia and Gerardo cannot show that Mexico would have jurisdiction under
II. THE HAGUE SERVICE CONVENTION
Gerardo contends the Agency failed to follow the Hague Service Convention in notifying him of the dependency proceedings and did not exercise due diligence in searching for him. He asserts his court-appointed attorney was not authorized to enter a general appearance for him. Gerardo argues the jurisdictional, dispositional, and all subsequent orders should be vacated for failure to comply with the Hague Service Convention.
A. Applicable Legal Principles
1. Standard Notice Requirements in Dependency Actions
Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314 [94 L.Ed. 865, 70 S.Ct. 652]; see In re Claudia S. (2005) 131 Cal.App.4th 236, 247 [31 Cal.Rptr.3d 697].) “Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.” (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 [26 Cal.Rptr.3d 394].)
When a
2. The Hague Service Convention
Where a parent is a resident of another country that is a signatory to the Hague Service Convention, the petition and notice of jurisdiction and disposition hearings must be served on the parent pursuant to the Convention‘s requirements. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547 [108 Cal.Rptr.3d 846].) The Hague Service Convention applies when the forum state‘s internal law requires transmittal of documents as a necessary part of service of process. (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 700 [100 L.Ed.2d 722, 108 S.Ct. 2104] (Volkswagenwerk).) In juvenile dependency actions, the juvenile court is required to serve the
The Hague Service Convention requires each state to establish a central authority to receive requests for service of documents from other countries. (Volkswagenwerk, supra, 486 U.S. at pp. 698-699.) In addition to service through a central authority, the Hague Service Convention permits service directly through its diplomatic or consular agents, or by mail, unless a state objects. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 1005, pp. 1222-1223.) Mexico has objected to the use of those channels for service on its own citizens. Service on a Mexican citizen resident can only be accomplished through the Mexican Central Authority. (In re Vanessa Q. (2010) 187 Cal.App.4th 128, 134-135 [114 Cal.Rptr.3d 294] (Vanessa Q.).)
When the Hague Service Convention applies to a parent, the failure to properly serve that parent “renders all subsequent proceedings void as to that person.” (In re Alyssa F. (2003) 112 Cal.App.4th 846, 852 [6 Cal.Rptr.3d 1].) Defective service of the petition and notice to appear is not cured by actual notice of the action. “Nonetheless, defective service is not fatal to personal jurisdiction if the defendant consents to jurisdiction over him or her by making a general appearance in the action.” (Vanessa Q., supra, 187 Cal.App.4th at p. 135; see Alyssa F., at p. 852; Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 794 [69 Cal.Rptr.2d 457].)3
The burden is on the plaintiff to show that service of process on the defendant comported with the Hague Convention, or why the Hague Convention did not apply. (Lebel, supra, 210 Cal.App.4th at p. 1160.)
B. Analysis
The claim the Agency did not make diligent efforts to locate Gerardo is meritless. When the Agency detained R.L. in protective custody in August, the social worker inquired about Gerardo‘s whereabouts. Cynthia gave the social worker the phone number for Aunt. The social worker immediately telephoned Aunt, who said she would go to Gerardo‘s workplace and tell him to telephone the social worker. The social worker did not hear from Gerardo. In September, shortly before the jurisdictional hearing, the Agency submitted a search request to DIF, the social services agency in Tijuana, Baja California. DIF reported that it searched the civil registry and could not locate Gerardo. In October, the Agency sent a request to the Mexican Consulate. It did not have a record of Gerardo. The social worker telephoned Aunt, who said she had not seen Gerardo for several months and did not know his whereabouts. In December, a DIF social worker went in person to Cynthia‘s address and then to Aunt‘s home in an effort to locate Gerardo. In January, DIF confirmed it had published a media announcement in an effort to locate Gerardo. Gerardo did not respond.
The record clearly shows that the Agency conducted a reasonable search to locate Gerardo and the inquiry was made in good faith. The Hague Service
Prior to the
“Defective service of the petition and citation to appear is not cured by [Gerardo‘s] actual notice of the action.” (Vanessa Q., supra, 187 Cal.App.4th at p. 135.) “Nonetheless, defective service is not fatal to personal jurisdiction if the defendant consents to jurisdiction over him or her by making a general appearance in the action.” (Ibid.) “A general appearance occurs when the defendant takes part in the action and ‘in some manner recognizes the authority of the court to proceed.’ ” (Ibid.)
Here, Gerardo made a general appearance in the action on October 28, when his counsel requested a continuance to obtain paternity test results. (Vanessa Q., supra, 187 Cal.App.4th at p. 135; see Zobel v. Zobel (1907) 151 Cal. 98, 101-102 [90 P. 191] [request for continuance constitutes general appearance because the relief could only be asked on theory that defendant was submitting to general jurisdiction of court]; see also Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 201 [81 Cal.Rptr. 683] [attorney‘s request for continuance of action constituted general appearance].)
It is a well-established principle that a general appearance constitutes consent to the court‘s personal jurisdiction regardless of any prior defect in notice. (Vanessa Q., supra, 187 Cal.App.4th at p. 136.) There is nothing in the record to support Gerardo‘s assertion his court-appointed attorney was not authorized to enter a general appearance for him. The record shows that Gerardo contacted the social worker, requested a paternity test, and asked for a court-appointed attorney. His attorney represented he had read the petition to Gerardo and discussed the case with him, entered a general denial, and obtained a continuance of the
DISPOSITION
The orders terminating parental rights are affirmed.
Benke, Acting P. J., and O‘Rourke, J., concurred.