In re A.L. CA2/1 ( 2022 )

Filed 2/17/22 In re A.L. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re A.L., B311556
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20CCJP03434)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CLIFTON L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________
The sole issue on this appeal is whether the juvenile court
made an adequate record of its communications with the
Washington State juvenile court under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA; Fam.
Code,1 § 3400 et seq.) before asserting jurisdiction over A.L., the
child of father, Clifton L., who is incarcerated.
The Los Angeles County Department of Children and
Family Services (the Department) took A.L. and her siblings into
protective custody (based, in part, upon mother Karla E.’s
ongoing substance abuse) during their trip from Franklin County,
Washington, to Los Angeles, California. The juvenile court
communicated on several occasions over a period of months with
the Washington State juvenile court, ultimately taking
jurisdiction of the children after learning that the Washington
court had decided not to do so.
The juvenile court advised the parties and counsel on the
record about its various discussions with the Washington State
dependency court, including that the presiding judge of the
dependency court for Franklin County had indicated an intention
to decline jurisdiction, but the juvenile court could not remember
1Subsequent unspecified statutory references are to the
Family Code.
2
or recite the name of the presiding juvenile judge in Franklin
County. Father faults this omission as prejudicial error.
Although it would have been preferable for the juvenile
court to identify the name of the specific Franklin County
presiding dependency judge who made the declination decision,
section 3410, subdivision (d) of the UCCJEA contains no
command that it do so. Nor does Father point to any legislative
history suggesting such a requirement.
Father has also failed to show that the omitted information
was either necessary, or indeed sufficient, to appeal the
Washington court’s decision to decline jurisdiction. The fact that
a Washington court might have evaluated Father’s relatives for
A.L.’s placement without relying on the Interstate Compact on
the Placement of Children (ICPC) is speculative and also fails to
establish prejudice.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
Mother and Father are from Washington State. Their
daughter, A.L., was born in 2014. At the time of A.L.’s birth,
Mother tested positive for methamphetamines. Father also
struggled with substance abuse and was incarcerated during
A.L.’s early years. Most recently, Father was convicted for
possession of methamphetamines and sentenced to five years in
federal prison. He is serving his sentence in Pennsylvania and is
expected to be released in 2023.
A.L. regularly spent time with her paternal relatives,
including Father’s adult daughter from a prior relationship,
Athena, and A.L.’s paternal grandmother. At times, when
Mother was absent, Athena cared for A.L.
3
From 2017 to 2019, Mother had two additional children
with David S., Sr., sons David S. and D.S. David S., Sr. is not a
party to this appeal.
B. Child Welfare History
Between 2009 and August 2019, there were at least eight
child welfare referrals in Washington relating to A.L., her older
maternal half-sister F.M.,2 or David S. and D.S. In each
instance, the referral was closed with a notation of either no
disposition or unfounded, and nothing in the record indicates that
a dependency matter was ever filed in Washington State court.
Washington State Department of Children, Youth, and Families
(Washington DCYF) did not identify any child welfare referrals
after August 2019.
C. Events Leading to Detention in California
In 2019, Mother began to date Pedro L. Pedro also had
substance abuse issues, and in June 2020, Mother, Pedro, A.L.,
David S., and D.S. traveled by car from Washington to California
to check Pedro into a drug treatment program. They stayed with
Pedro’s family in La Puente, California. On June 17, 2020, police
responded to a report of child abuse. The Department also
received information that Mother and Pedro appeared to be using
drugs.3
2
F.M. lives with her maternal grandmother in
Washington.
3 Because no party appeals the merits of the juvenile
court’s jurisdictional findings or dispositional orders, we do not
state further facts relating to the bases for the juvenile court’s
rulings.
4
D. The Petition
On June 23, 2020, the Department detained the children.
On June 25, 2020, the Department filed a section 300 petition.
The Department alleged the children came within the juvenile
court’s jurisdiction pursuant to subdivisions (a), (b), and (j) based
upon Mother striking A.L.; Mother’s substance abuse; Pedro’s
substance abuse, history of mental and emotional issues, and
forcing A.L. to eat hot chilies; and Mother permitting the children
to be driven from Washington to California without securing
them in car seats.
On June 30, 2020, the juvenile court found Father was the
presumed father of A.L. On September 16, 2020, DCFS filed an
amended petition, alleging A.L. has suffered or there was a
substantial risk she would suffer serious physical harm or illness
as a result of her Father’s inability to care for her due to his
history of substance abuse. On October 30, 2020, the court
appointed counsel for Father.4
E. Proceedings Relating to the UCCJEA
On June 30, 2020, during an initial hearing, Mother and
counsel for the children agreed that the juvenile court would need
to speak with a court in Franklin County, Washington to
determine whether it would assert subject matter jurisdiction.
On September 29, 2020, the juvenile court stated on the
record that it reached out to the Franklin County court
administrator to discover whether Washington would assert
jurisdiction. The juvenile court had not received a response to its
4 The appellate record does not include a reporter’s
transcript of the October 30, 2020 non-appearance progress
report hearing.
5
inquiry and stated it would contact the Franklin County court
again.
During a November 6, 2020 progress report hearing, the
juvenile court stated it “had been informed previously by
Commissioner [Pamela E.] Peterson . . . that she had spoken with
the presiding judge of Franklin County, and that they were going
to be asserting jurisdiction in the state of Washington over this
matter. However, it appears that [county counsel] . . . reached
out to . . . her like agency in Washington . . . , and has received
conflicting information.[5] . . . So . . . I’m going to once again
5 Between October 26, 2020, to November 5, 2020, county
counsel communicated by email with the Washington attorney
general’s office. Those emails provide that on October 26, 2020,
Commissioner Peterson from Franklin County, Washington
juvenile dependency court advised the Los Angeles County
juvenile court “that the [p]residing [j]udge of dependency in
Franklin County, [Washington] confirmed that [Washington] will
assert home state jurisdiction.” Then, on November 4, 2020, a
Franklin County, Washington social worker advised that “she
was still waiting on her [a]ssistant [a]ttorney [g]eneral to find out
information[;] . . . she last heard from [them that they] were
waiting to hear back from their [c]ourt.”
On November 5, 2020, the Washington attorney general
reported to the Department that Washington DCYF did not
intend to proceed with a dependency matter. “DCYF has not had
contact with this family for some time, [since] 2019. . . .
[Washington] DCYF does not have any open case on the family
and/or any referral for any [child protective services]
investigation. It appears any facts leading to state intervention
have occurred in [California] . . . . [¶] It appears that [Mother]
and the child(ren) are in [California]. . . . [Washington] DCYF
has no objection to [California] proceeding with the case they
6
reach out to Commissioner Peterson and see what the
discrepancy is . . . .” The juvenile court asked whether any
counsel wished to be heard further on the matter. Father’s
counsel was present but remained silent.
On November 13, 2020, the juvenile court informed the
parties that it called the Washington court twice that week,
advised the staff in Washington that it had a progress report
hearing that day and had set the matter for adjudication on
November 30, 2020, and asked for a return call.6 The juvenile
have and does not intend to file dependency petitions at this
time.” County counsel responded that Washington DCYF’s
declination was insufficient under the UCCJEA. “It has to be the
[p]residing [j]udge of Franklin County dependency that must
decline to assert home state jurisdiction.”
6 The juvenile court stated on the record at the
November 13, 2020, hearing: “[I] called out to Washington state
twice this week after being told that Washington would assume
jurisdiction of this case. I actually spoke with an individual
yesterday who took the information. I indicated to her . . . to
either call and leave me a voicemail or send me an e-mail if they
had decided to take the case. I have not heard from them.”
“Previously I had communication with Tiffany Deaton . . . .
She’s the court administrator. I left two messages. Another
woman called me back yesterday. I didn’t write her name down,
unfortunately. . . . I gave her the contact information for . . . the
[individual] who indicated that Washinton’s DCYF’s position had
not changed and they were not accepting jurisdiction. I told this
woman that I spoke with . . . that this matter [was] set for
adjudication on November the 30th . . . and that I had a progress
report update . . . today, and I asked them to either e-mail me or
return a call by 8:30 this morning. And I even just checked my e-
mail now, and nothing has come in, nor have I had any voicemail
7
court concluded, “unless I hear back from them, I’m assuming
that this matter will be set for adjudication, it will go forward on
November the 30th at 8:30 a.m. in this department” and “our
court will take jurisdiction, or retain jurisdiction, since
Washington doesn’t seem to want it.” Father’s counsel, present
at the hearing, did not raise any objection or ask to be heard as to
why the matter should proceed in Washington.
The juvenile court continued the November 30, 2020
adjudication hearing. In the meantime, according to a January 6,
2021, last minute information, on December 18, 2020, county
counsel emailed the Department and conveyed that the juvenile
court had spoken with Commissioner Peterson. Washington
declined to open a case for the children. A copy of this email is
not in the appellate record.
Father and his counsel appeared for the adjudication
hearing scheduled for February 25, 2021. Due to scheduling
issues for both Mother’s and Father’s attorneys, the juvenile
court continued the matter to March 12, 2021. The court
indicated it would make its UCCJEA record on that date.
Notwithstanding that it was clear the juvenile court intended to
move forward with adjudication, Father did not raise any
objection to it taking subject matter jurisdiction.
On March 12, 2021, the juvenile court stated: “There was a
long and involved discussion with the state of Washington as to
whether or not they were seeking jurisdiction over this matter.
from the Franklin County court administration about their
willingness to accept this case. . . . So unless I hear back from
them, I’m assuming that this matter will be set for adjudication,
it will go forward on November the 30th at 8:30 a.m. in this
department.”
8
Prior to my taking over the bench in [this] department . . . in
August, I believe that previous contact with the Washington
court in Franklin County had been initiated by my predecessor
Judge Nguyen. And I did see in the court notes that Judge
Nguyen had initiated contact with the juvenile dependency bench
in Franklin County . . . . I also reached out to Franklin County.
There was a lot of delay in hearing back from them. On
October 26, 2020, I did have an ex parte with the lawyers, and I
advised that Commissioner Peterson . . . in Franklin County,
Washington . . . informed [this court] that [the] state of
Washington was going to assert jurisdiction [over] this
dependency matter, as at that time Washington was going to
claim home state jurisdiction. On November 6[,] there was an
off-the-record conference held with the court again and counsel
concerning emails that the [D]epartment . . . had received from
the attorney general in the state of Washington, and they were
attached to the [last minute information] for that date, indicating
that once again I was going to reach out to the court in the state
of Washington, which I did. And there was a nonprogress
[report] hearing set for November 1 to report back to all counsel
concerning the UCCJEA discussion. On November 13, the court
called the case, and I indicated that I did speak with Washington
twice to an individual named Tiffany Denton . . . , court
administrator. On November 9th[,] this court called and left a
message. I never received a call back. And again on November
12th, . . . I also received a message. I didn’t write the name
down, unfortunately, because I was expecting a return call from
Washington DCYF, as the position had changed. There was no
further communication via voicemail or e-mail concerning their
willingness to accept the case, and at that time it was this court’s
9
belief that Washington does not intend and[,] at that time[,] did
not intend to assert jurisdiction. They are informed of the
existence of the pendency of this juvenile dependency case, and
this court is asserting jurisdiction and proceeding forward.”
The juvenile court continued, “[o]n December 8, 2020, I also
informed counsel off the record that I finally heard back from the
judge in Washington, and at that time they were, in fact,
declining jurisdiction, and that was a message from a court
assistant who had discussed the matter with the presiding judge
of the dependency court for Franklin County.”
In response, Father’s counsel argued, “please note my
objection to this court taking jurisdiction of the matter. The court
did indicate that on or about . . . November 9th you received a
message. You did not take down a number. Then on
December 18 [sic] you heard back from a Washington judge. I
don’t know if you indicated a name for that judge. . . . May we
please have the name of that judge? My client was wishing and
hoping that Washington would take jurisdiction over this matter.
So at this time please note my objection to this court taking
jurisdiction.” Mother’s counsel joined in Father’s objection “in
that we believe Washington is the proper venue.”
The juvenile court stated that it would “have to augment
the record with the name of the presiding judge. I’ll have to look
it up. It was the head of the dependency court for Franklin
County, Washington. I looked it up on Google and I had it
written down. And, unfortunately, I got rid of those handwritten
notes because I thought the matter had been completed. . . . If
counsel wants to look it up, it was the presiding judge of [the]
juvenile dependency court for Franklin County who I spoke to.”
10
The March 12, 2021, minute order does not reflect the name of
the judicial officer that decided to decline home state jurisdiction.
F. Jurisdictional and Dispositional Orders
On March 12, 2021, after finding it had subject matter
jurisdiction, the juvenile court asserted Welfare and Institutions
Code section 300, subdivision (b) jurisdiction over A.L. and her
half-siblings based on, inter alia, Mother’s history of substance
abuse, her failure to protect the children from Pedro, and
Father’s history of substance abuse.
The court removed A.L. from Mother and Father, and
ordered reunification services for Mother only, bypassing
reunification services for Father based on the length of his prison
term. (See Welf. & Inst. Code, § 361.5, subd. (e)(1).) As Father
had previously informed the Department that he wanted A.L.
placed with her adult half-siblings in Washington, the juvenile
court ordered an ICPC assessment of Athena as well as maternal
relatives in Washington.
Father timely appealed.
DISCUSSION
A. Governing Law
“The UCCJEA ‘is the exclusive method of determining the
proper forum in custody disputes involving other jurisdictions
and governs juvenile dependency proceedings.’ [Citation.] 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
11
custody decrees. [Citation.]” (In re R.L. (2016) 4 Cal.App.5th
125, 136.)7
To that end, section 3410 provides that “[a] court of this
state may communicate with a court in another state concerning
a proceeding arising under [the UCCJEA].” (§ 3410, subd. (a).)
7 Section 3421 provides four bases under which a California
court may assert jurisdiction over a child custody proceeding and
issue a permanent child custody order. First, “[t]his 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.” (§ 3421, subd. (a)(1).) “ ‘Home
state’ 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.” (§ 3402, subd. (g).) Second, “[a] court of another
state does not have jurisdiction under [section 3421, subdivision
(a),] 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.” (§ 3421, subd. (a)(2).) Third, “[a]ll 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.” (§ 3421, subd. (a)(3).) Fourth, “[n]o
court of any other state would have jurisdiction under the criteria
specified in paragraph (1), (2), or (3).” (§ 3421, subd. (a)(4).)
12
The parties may “participate in the communication” and if they
“are not able to participate in the communication, they must be
given the opportunity to present facts and legal arguments before
a decision on jurisdiction is made.” (§ 3410, subd. (b).)
Other than communications relating to “schedules,
calendars, court records, and similar matters,” “a record must be
made of a communication under this section.” (§ 3410, subds. (c),
(d).) Further, “[t]he parties must be informed promptly of the
communication and granted access to the record.” (§ 3410,
subd. (d).) The record must be “inscribed on a tangible medium”
or “stored in an electronic or other medium and [be] retrievable in
perceivable form.” (§ 3410, subd. (e).) A verbatim transcript of
the communication is not required, and a memorialization of the
communication at a hearing at which a reporter’s transcript is
made is sufficient to satisfy section 3410. (See In re C.T. (2002)
100 Cal.App.4th 101, 112.)
B. Father Has Not Demonstrated that the Juvenile
Court Prejudicially Erred in Failing to Record the
Name of the Judicial Officer or Department that
Declined Jurisdiction
Father maintains the juvenile court erred in “fail[ing] to
make a record of which court it was communicating with” which
was prejudicial because it left him without any appellate remedy
to address the Washington court’s errors. Father contends the
deficiencies in the record left him without an opportunity to
submit information to the Washington court and challenge the
Washington DCYF’s decision not to open a dependency matter in
Washington.
As a consequence, Father argues that the judgment in this
matter must be reversed and remanded to the juvenile court with
13
instructions for it to again inquire whether Washington will
exercise subject matter jurisdiction under the UCCJEA and this
time record “the identity of the Washington State court” with
which the juvenile court communicates.
The plain language of section 3410, subdivision (d) does not
state which details of the courts’ communication must be
recorded, let alone whether the juvenile court must record the
name of the judicial officer or particular department with which
it communicated. Nor does Father point to any legislative history
that would establish such a requirement. Rather, Father makes
a policy-based argument that in order to appeal the Washington
court’s decision, Washington requires the appellant to identify
“the decision or part of decision which the party wants reviewed”
(Washington Rules of Appellate Procedure (RAP) 5.3(a)), and that
“[w]ithout knowing which court issued the order, it would have
been impossible for [him] to accurately identify the decision.” He
contends that he thus suffered prejudice because the lack of this
information prevented him from appealing the Washington
court’s errors. We do not agree.
Although the better practice would have been for the
juvenile court to record the name of the judicial officer who made
the decision to decline jurisdiction, we do not conclude that the
court’s failure to do so contravened section 3410, subdivision (d).
The juvenile court stated the decision to decline jurisdiction had
been made on or about December 8, 2020, by the “presiding
judge” or the “head” “of the dependency court for Franklin
14
County, Washington.”8 Father has not demonstrated that this
information was insufficient, either under section 3410, or to
initiate an appeal in Washington.9
Father has also failed to demonstrate prejudice because he
has not shown that, had he had the name of the particular
judicial officer or department that made the decision, he could
have appealed the Franklin County court’s decision in
Washington. Relying on In re E.R. (2018) 28 Cal.App.5th 74, 80,
Father claims that “if one has a problem with the out-of-state
court’s decision to relinquish subject matter jurisdiction, the
matter must be taken up in that state.”
In re E.R. is procedurally distinct from the case before us in
that there was a pending out-of-state (Nevada) dependency
matter. Thus, there was a dependency court case from which the
parents could appeal in that state. The same is not true here:
there was no pending dependency matter in Washington relating
to A.L. or her siblings. Indeed, the record suggests Washington
DCYF has never filed a dependency petition relating to the
children.10
8 A January 6, 2021, last minute information, also suggests
that the decision to decline jurisdiction had been made by
Commissioner Peterson.
9 Father complains a Google search may result in
unreliable or incorrect information. However, he does not explain
why his counsel could not telephone the Franklin County court in
an effort to identify which specific court, based upon the
information he had, decided to decline jurisdiction.
10 On our own motion (Evid. Code, § 452, subd. (e)), we take
judicial notice of Washington Rules of Appellate Procedure Form
15
We pause to note that Father’s participation in the
UCCJEA determination was desultory. For example, under
section 3410, subdivision (b), Father could have submitted facts
and argument to the juvenile court which, in turn, could have
been communicated to the Franklin County court.11 Father also
1, the notice of appeal, which purports to require a trial court
case number. (See
https://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_FORM
1.pdf (as of 2/16/22).)
Further, RAP 5.3 suggests that a copy of a written order
must be attached to the notice of appeal. (See RAP 5.3(a)
[“Content of Notice of Appeal. A notice of appeal must (1) be
titled a notice of appeal, (2) specify the party or parties seeking
the review, (3) designate the decision or part of decision which
the party wants reviewed, and (4) name the appellate court to
which the review is taken. [¶] The party filing the notice of
appeal should attach to the notice of appeal a copy of the signed
order or judgment from which the appeal is made, and, in a
criminal case in which two or more defendants were joined for
trial by order of the trial court, provide the names and superior
court cause numbers of all codefendants. . . .” (Italics added.)]
However, Father had neither a trial court case number nor a
written order to provide with a Washington notice of appeal.
11 Although the issue has not been directly raised in this
appeal, case law suggests that Father could have challenged the
juvenile court’s assertion of subject matter jurisdiction by
petitioning it to decline and transfer jurisdiction on the basis that
it was an inconvenient forum under section 3427 (see A.M. v.
Superior Court (2021) 63 Cal.App.5th 343, 348) or by filing an
action for declaratory relief in Washington (see Burst v. Schmolke
(La. Ct. App. 2011) 62 So. 3d 829, 833; Monk v. Pomberg (Tex.
App. 2007), 263 S.W.3d 199, 206).
16
could have requested to be present during the communications
between the juvenile courts in California and Washington.
Father pursued neither course. To the contrary, Father
remained on the sidelines for four months, notwithstanding the
juvenile court’s indication that it would likely take subject matter
jurisdiction. Even when he did object, Father argued only that he
had “wish[ed] and hop[ed]” that the matter would proceed in
Washington.12
Father also suggests that the Washington court’s purported
errors were prejudicial because “[h]ad the Washington State
12 The Department argues Father forfeited his appeal by
failing to raise a timely objection in the juvenile court. However,
upon the juvenile court’s reading into the record of its UCCJEA
efforts, Father promptly inquired as to the name of the
Washington judicial officer who made the decision to decline
jurisdiction. Thus, Father adequately preserved this issue for
appeal.
The Department also argues that Father lacks standing
because he has not shown that he has been aggrieved by the
juvenile court’s assumption of subject matter jurisdiction.
Standing is construed liberally, with doubts resolved in its favor.
(In re K.C. (2011) 52 Cal.4th 231, 236; see Johnson v. Department
of Social Services (1981) 123 Cal.App.3d 878, 883 [court will
address merits of appeal despite “some reservations about
appellants’ standing”].) Here, upon assuming subject matter
jurisdiction, the juvenile court made jurisdictional findings and
dispositional orders against Father. Although Father’s appeal
does not challenge those findings or orders on the merits, he
seeks to reverse these findings and orders, by which he is
aggrieved, based on the juvenile court’s alleged failure to comply
with the UCCJEA. Accordingly, we decline to dismiss the appeal
on the basis that Father lacks standing.
17
court stood by its original decision to exercise subject matter
jurisdiction, [placement with Athena] could have been effectuated
without need to follow ICPC procedures.” Yet Father has not
shown how proceeding under ICPC injured him or how an
assessment of Athena’s home under the ICPC differed from an
assessment of her home under Franklin County’s jurisdiction.
DISPOSITION
The March 12, 2021 findings and order of the juvenile court
relating to A.L. are affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P.J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
18