In re Aiden L. ( 2017 )

Filed 10/23/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re AIDEN L. et al., Persons B277445
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK06921)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
BRITTNEY M. et al.,
Appellants.
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.
Jesse McGowan, under appointment by the Court of
Appeal, for Hector and Sandra 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
1
Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.).
Because the Los Angeles court failed to contact officials in
Arizona and allow that state to properly assert its jurisdiction
over Aiden, Brittney argues, its findings and orders from the
jurisdiction hearing forward, including the August 8, 2016 order
terminating her and her husband’s parental rights, must be
reversed. Brittney’s challenge to the jurisdiction of the California
court to terminate her parental rights is joined by Aiden’s
maternal grandparents, who live in Arizona and have custody of
Aiden’s two older sisters, Cora L. and P.L., and by his siblings,
Cora and P.L.
Even though the juvenile court at no time addressed the
UCCJEA, the Los Angeles County Department of Children and
1
Statutory references are to the Family Code unless
otherwise stated.
2
Family Services (Department) contends the record supports the
court’s exercise of jurisdiction.
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
2
old, P.L. now nine years old, and Aiden. 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.
2
Aiden’s birth certificate states he was born in Lake Havasu
City, Arizona at the Havasu Regional Medical Center.
3
On March 1, 2012 the Superior Court of Arizona, Mohave
County, granted Hector and Sandra’s petition and awarded them
sole custody of Cora and P.L. In June 2016 the court terminated
Brittney and Joseph’s parent-child relationship with Cora and
P.L., finding in part that they were unable to discharge their
parental responsibilities due to a 20-year history of substance
abuse.
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
4
interviewed in jail, Brittney requested that Aiden be sent to live
with his maternal grandparents and sisters in Arizona if he was
removed from Joseph’s custody.
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 Welfare and Institutions
Code section 300, subdivisions (a) (serious physical harm) and
(b) (failure to protect), on Aiden’s behalf on August 14, 2014,
alleging in part that Brittney and Joseph had endangered Aiden
by allowing him to live within ready access of heroin and that
both parents had a history of illicit drug abuse and were current
abusers of methamphetamine and other drugs. The petition also
alleged the couple had engaged in acts of domestic violence in
Aiden’s presence.
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.”
5
Prior to the jurisdiction hearing Nancy told the
Department she was willing to care for Aiden and to adopt him if
his parents failed to reunify with him. Sandra told the social
worker she was “okay with Aiden being with Nancy. We are
happy that he is being well taken well care of.” Hector also told
the social worker he was satisfied with Aiden being placed
permanently with his sister.
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
3
contested hearing. In filings with the court the Department
3
Copies of the initial jurisdiction-disposition report, dated
October 9, 2014, were served on Brittney by the Department at
addresses in Covina, California, La Puente, California, Kingman,
Arizona, and Lake Havasu City, Arizona. Joseph’s service copies
6
reported that Brittney had been born in Anaheim and moved
with her parents to Lake Havasu City, Arizona, when she was 15.
She graduated from high school and attended community college
in Arizona. Joseph was born in West Covina but attended high
school and community college in Arizona. He indicated his
parents had a long history of substance abuse and stated his
father was in prison in Arizona. His mother was then living once
again in West Covina where other members of the family also
lived.
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,
4
with a reported January 6, 2017 release date.
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
of the report were sent to addresses in Covina, California and
Rio Linda, California.
4
Brittney’s incarceration in an Arizona state prison was first
noted in the Department’s report for the October 19, 2015
12-month permanency review hearing. She had been arrested in
Arizona, as was Joseph, in July 2015. An addendum report for
the continued hearing date of January 5, 2016 indicated
Brittney’s release date at that point was June 2017.
7
maternal great-aunt. Brittney and Joseph were provided with
family reunification services including a drug program with
aftercare.
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
(Welf. & Inst. Code, § 366.21, subd. (f)) after the court found
Brittney and Joseph were not making adequate progress with
their case plans. The court scheduled a selection and
implementation hearing (Welf. & Inst. Code, § 366.26) for
May 13, 2016.
On April 29, 2016 Cora and P.L. filed a petition to modify
prior court orders (Welf. & Inst. Code, § 388), requesting that
Aiden be removed from the maternal great-aunt’s home and
placed together with them in the home of their maternal
grandparents. The court ordered briefing and continued the
selection and implementation hearing to trail the hearing on the
siblings’ petition.
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
8
hearing on August 8, 2016. Counsel for Brittney and for Cora
and P.L. argued the Welfare and Institutions Code
section 366.26, subdivision (c)(1)(B)(v) sibling exception applied
and barred termination of parental rights. The court rejected the
argument, based in part on Nancy’s statement of intent to
continue to allow contact between Aiden and his siblings; found
Aiden adoptable by clear and convincing evidence; ordered
termination of Brittney and Joseph’s parental rights; and
designated Nancy as Aiden’s prospective adoptive parent.
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 (§ 3402, subd. (d)) and provides the exclusive means
for determining the proper forum and subject matter jurisdiction
for child custody proceedings involving those two states. (§ 3421,
subd. (b) [“[s]ubdivision (a) [of this section] is the exclusive
jurisdictional basis for making a child custody determination by a
court of this state”]; Ariz.Rev.Stat. § 25-1031, subd. (B) [same];
see In re A.C. (2017) 13 Cal.App.5th 661, 668; In re M.M. (2015)
9
240 Cal.App.4th 703, 715.) “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 R.L.
(2016) 4 Cal.App.5th 125, 136.)
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.)
Section 3421, subdivision (a), sets forth four alternative
bases for subject matter jurisdiction:
“(a) Except as otherwise provided in Section 3424,[ ] a court
5
of this state has jurisdiction to make an initial child custody
determination only if any of the following are true:
5
Section 3424 provides an exception to the exclusive
jurisdictional bases for making an initial child custody
determination or modifying a sister state custody order. (§§ 3421,
subds. (a), (b), 3423.) A California court may exercise “temporary
emergency jurisdiction” when a “child is present in this state and
. . . it is necessary in an emergency to protect the child because
the child . . . is subjected to, or threatened with, mistreatment or
abuse.” (§ 3424, subd. (a).) An “emergency” exists when there is
an immediate risk of danger to the child if he or she is returned
to a parent. (Cristian, supra, 224 Cal.App.4th at p. 1097; In re
Jaheim B. (2008) 169 Cal.App.4th 1343, 1349; In re Nada R.
(2001) 89 Cal.App.4th 1166, 1174-1175.) “Although emergency
jurisdiction is generally intended to be short term and limited,
the juvenile court may continue to exercise its authority as long
as the reasons underlying the dependency exist.” (In re
10
“(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 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).”
“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.)
11
child less than six months of age, the term means the state in
which the child lived from birth with any of the persons
mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.” (§ 3402, subd. (g).) A
child’s home state has priority over other jurisdictional bases.
(§ 3421, subd. (a)(1); In re A.C., supra, 13 Cal.App.5th at p. 669.)
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
12
decision to run away to California cannot defeat the home-state
status of his origin state under the UCCJEA”].)
“Physical presence of, or personal jurisdiction over, a party
or a child is not necessary or sufficient to make a child custody
determination.” (§ 3421, subd. (c); see In re Gino C. (2014)
224 Cal.App.4th 959, 965.)
b. Contacting the child’s home state
If a California court has exercised temporary emergency
jurisdiction pursuant to section 3424, subdivision (a), to protect a
child present in the state from actual or threatened abuse or
mistreatment, that court may not address the merits of the
dependency petition or otherwise make a final child custody
determination until it properly asserts jurisdiction under the
nonemergency jurisdiction provisions of the UCCJEA. (In re
Gino C., supra, 224 Cal.App.4th at p. 966; In re C.T., supra,
100 Cal.App.4th at p. 113.) Thus, if the court is aware that
another state (or foreign country) qualifies as the child’s home
state, the California court must contact the home state court to
give it an opportunity to decide whether to exercise its home state
jurisdiction. (See §§ 3421, subd. (a)(2) & (3), 3424, subd. (b);
In re M.M., supra, 240 Cal.App.4th at pp. 718-719 [assertion of
jurisdiction affirmed; “the record shows the juvenile court made
several attempts to discuss the jurisdiction issue with a Japanese
court before the juvenile court properly exercised permanent
jurisdiction”]; In re Gino C., at p. 966 [reversing exercise of
permanent jurisdiction; “[s]ince the court opted to remain passive
and did not contact Mexico, Mexico has not been given an
opportunity to decide whether to exercise its home state
jurisdiction”]; In re A.M., supra, 224 Cal.App.4th at p. 598; see
generally § 3410, subd. (a) [“[a] court of this state may
13
communicate with a court in another state concerning a
proceeding arising under this part”].)
An express order by the home state declining jurisdiction in
response to the inquiry from the California court is not required.
(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 section 3421.”
(Id. at p. 717.)
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
14
must defer to the trial court’s resolution of credibility and
conflicts in the evidence.” (Schneer, supra, 242 Cal.App.4th at
pp. 1285-1286.) The Schneer court held, “when the facts are
contested, a trial court’s jurisdictional finding under the UCCJEA
is reviewed under the deferential substantial evidence standard.”
(Id. at p. 1286.) In reaching this result the Schneer court noted
that Division Four of this court had also applied the substantial
evidence standard of review to jurisdictional findings in Haywood
v. Superior Court (2000) 77 Cal.App.4th 949, 954, and In re
Janette H. (1987) 196 Cal.App.3d 1421, 1427.
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
6
well. 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 section 3424. (See Cristian, supra,
7
224 Cal.App.4th at pp. 1100-1101.) Our role, once the juvenile
6
In their briefs on appeal Brittney and the Department cite
only to cases stating the appellate court does not defer to the
factual findings of the juvenile court. Hector and Sandra cite
Schneer, supra, 242 Cal.App.4th at page 1286 and acknowledge
the split in authority.
7
In Cristian, supra, 224 Cal.App.4th 1088, we held a
detention hearing under Welfare and Institutions Code
section 319 at which the parents and child and their counsel were
15
court has evaluated witnesses’ credibility, resolved conflicts in
the evidence and made its findings, is to ensure that the
provisions of the UCCJEA have been properly interpreted and
that substantial evidence supports the factual basis for the
juvenile court’s determination whether California may properly
exercise subject matter jurisdiction in the case.
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 Family Code section 3425, In re C.T.,
supra, 100 Cal.App.4th at page 113, and People v. Beach (1987)
194 Cal.App.3d 955, 963.)
16
made its jurisdiction findings and subsequent child custody
orders. This was error.
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
section 3402, subdivision (g)—an inquiry that requires a careful
examination of the family’s circumstances as of August 2014
when the dependency petition was filed.
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
17
8
respect to those two children. Finally, the juvenile court should
determine whether there were outstanding warrants for Brittney
and Joseph’s arrest in Arizona in March 2014 and, if so, whether
that was part of the reason the couple left the state when they
did. (Cf. § 3428, subd. (a) [court should decline to exercise its
jurisdiction “if a court of this state has jurisdiction under [the
UCCJEA] because a person seeking to invoke its jurisdiction has
engaged in unjustifiable conduct”]; In re Nelson B., supra,
215 Cal.App.4th at p. 1131 [noting that some UCCJEA states
consider the period following a child’s unauthorized removal as a
temporary absence from the state and that § 3428, subd. (a),
9
provides an analogous principle].)
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 section 3421,
subdivision (a)(1), it must then decide whether California has
jurisdiction under section 3421, subdivision (a)(2), because it was
a more appropriate forum than Arizona considering the factors
8
As discussed, Brittney and Joseph’s parental rights with
respect to Cora and P.L. were not terminated until June 2016,
nearly two years after the Department filed the dependency
petition concerning Aiden.
9
Because the issue of subject matter jurisdiction under the
UCCJEA must be addressed by the juvenile court in the first
instance, we need not consider the Department’s contention that
this matter “compares favorably” with In re S.W. (2007)
148 Cal.App.4th 1501, in which the Court of Appeal,
independently weighing the jurisdictional facts, rejected the
mother’s claim she was only temporarily absent from Nebraska
during the time she lived in a van in California.
18
10
identified in section 3427, subdivision (b); Aiden and one or both
of his parents “ha[d] a significant connection with this state other
than mere physical presence” (§ 3421, subd. (a)(2)(A)); and
substantial evidence was available in California “concerning the
child’s care, protection, training and personal relationships”
(§ 3421, subd. (a)(2)(B)). Again, this evaluation of factual issues
underlying the assertion of UCCJEA subject matter jurisdiction
must be done as of the time the dependency proceedings were
initiated. Accordingly, in addition to weighing Brittney and
Joseph’s connection to California after living most of their adult
lives in Arizona, the nature of Aiden’s relationship with his
maternal great-aunt on August 18, 2014 when he had been
detained with her for only six days, not their current relationship
after three years of living together, is to be considered in deciding
whether Aiden had a significant connection with California other
10
In evaluating whether California is an inconvenient forum
under section 3427, subdivision (b), the court must consider “all
relevant factors, including: [¶] (1) Whether domestic violence
has occurred and is likely to continue in the future and which
state could best protect the parties and the child. [¶] (2) The
length of time the child has resided outside this state. [¶]
(3) The distance between the court in this state and the court in
the state that would assume jurisdiction. [¶] (4) The degree of
financial hardship to the parties in litigating in one forum over
the other. [¶] (5) Any agreement of the parties as to which state
should assume jurisdiction. [¶] (6) The nature and location of
the evidence required to resolve the pending litigation, including
testimony of the child. [¶] (7) The ability of the court of each
state to decide the issue expeditiously and the procedures
necessary to present the evidence. [¶] (8) The familiarity of the
court of each state with the facts and issues in the pending
litigation.”
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11
than mere physical presence. Similarly, the assessment of the
relative availability of evidence in California and Arizona
necessary to maintain and strengthen Aiden’s personal
relationship with his siblings must be made as of the date
dependency proceedings started. Finally, the court must consider
that the allegations in the dependency petition to be adjudged
concerning the risk to Aiden from remaining in the care and
custody of Brittney and Joseph included not only the incident
that caused Brittney’s arrest in the West Covina motel room but
also her and Joseph’s extended history of drug abuse and
domestic violence while living in Arizona, matters that were then
at issue in the custody proceedings in Arizona involving Aiden’s
siblings.
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 section 3421, subdivision (a)(2).
(See § 3425; Cristian, supra, 224 Cal.App.4th at pp. 1100-1101.)
Accordingly, we vacate the court’s August 8, 2016 order
terminating Brittney and Joseph’s parental rights and remand
11
We acknowledge that the required evaluation of UCCJEA
subject matter jurisdiction as of August 2014 could result in
decisions that lead to Aiden’s removal from the supportive home
of a loving relative who is prepared to adopt him. That is the
unfortunate consequence of the failure to identify and address
the issue of jurisdiction at the appropriate early point in the
dependency proceedings.
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the matter for the juvenile court to proceed in conformity with
the requirements of the UCCJEA.
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.
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