In re E.R. ( 2018 )

Filed 10/10/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re E.R. et al., Persons 2d Juv. No. B288376
Coming Under the Juvenile (Super. Ct. Nos. J071566,
Court Law. J071567)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.C. et al.,
Defendants and Appellants.
The courts, not the parties, decide jurisdiction.
A.C. (Mother) and E.R. (Father) appeal orders of the
juvenile court terminating their parental rights to their children
E.R. and D.R., minors coming under the juvenile court law.
(Welf. & Inst. Code, §§ 300, subds. (b)(1) & (g), 366.26.)1 We
conclude, among other things, that the juvenile court had
jurisdiction under the Uniform Child Custody Jurisdiction
All statutory references are to the Welfare and
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Institutions Code unless otherwise stated.
Enforcement Act (UCCJEA) (Fam. Code, § 3421) after a Nevada
juvenile court declined to exercise jurisdiction. We conditionally
reverse and remand because the investigation required by the
Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was
not complete.
FACTS
The Nevada Juvenile Court Proceedings
In April 2017, the Clark County, Nevada Department of
Family Services (DFS) filed a juvenile dependency petition in the
Clark County, Nevada juvenile court (“Nevada court”). Mother
had recently given birth to twins, E.R. and D.R., in Nevada. The
babies tested positive for “amphetamines,” because Mother used
methamphetamines during her pregnancy.
The DFS petition stated that Mother lives in California and
came to Nevada “to sign her kids over to her cousin.” Mother’s
parental rights to two other children were recently terminated by
the Ventura County Superior Court (“juvenile court” or
“California court”). Mother’s and Father’s “drug use and out of
control behavior put[] [the twins] at risk of not having their needs
met.” Mother and Father have “extensive criminal” histories and
both have “perpetrated domestic violence.”
The Nevada court sustained the DFS juvenile dependency
petition on May 24, 2017. The following month, the parents
appeared in the Nevada court and were advised about their
visitation rights. The twins were placed in a foster home in
Nevada.
During the next two months, the Nevada court judge and
the California court judge, Judge Cody, had telephone
conversations concerning which court should exercise
jurisdiction. The Nevada court judge expressed concern whether
Nevada should maintain jurisdiction, noting: 1) the “parents may
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have just came to Las Vegas to give birth to the children” and
then return to California, and 2) both parents have pending
California criminal cases.
In July, the Nevada court declined to exercise further
jurisdiction, ruling: “California is to take jurisdiction of the case”;
“California does not have a problem taking jurisdiction and the
parents have all of their family in California.” Judge Cody
informed the Nevada court in a telephone call that the Ventura
County Human Services Agency (HSA) was “willing to file a
Petition” in California. The Nevada court ordered the “DFS to
transfer the files to California.”
The California Court Proceedings
On July 31, 2017, HSA filed juvenile dependency petitions
(§ 300, subds. (b)(1), (g) & (j)) in the California court, alleging,
among other things, that Mother and Father were unable to care
for and protect the infants. HSA repeated the allegations of the
Nevada DFS petitions relating to substance abuse, criminal
conduct, abuse and neglect. In its detention report, HSA
reported, “The children are currently placed in a confidential
foster home in Nevada.”
At the August 1, 2017, hearing, the parents appeared with
counsel. Judge Cody said, “So we’re here at a detention hearing
on a case that I became familiar with when I received a telephone
call from a Nevada court several weeks ago . . . . [T]he decision
was made . . . with the agreement of both courts that California
should exercise general jurisdiction.”
Mother’s counsel said, “Nevada would have been the
appropriate forum. The children remain in Nevada. But I think
the Nevada court has made a decision that’s not a decision of this
Court and so their remedy would lie in Nevada I would assume.”
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The juvenile court found section 300 governs, and HSA “has
the responsibility for the temporary care and placement of the
children.”
In the jurisdiction/disposition report, HSA recommended
that family reunification services for Mother be bypassed
because: 1) in a prior dependency court proceeding, Mother’s
parental rights to the twins’ older siblings were terminated; and
2) Mother had a significant substance abuse history. (§ 361.5,
subd. (b)(11), (13).) The juvenile court found the allegations of
the juvenile dependency petitions true and ruled, “Services to the
mother are bypassed . . . .” HSA subsequently recommended that
Father not receive reunification services. After an evidentiary
hearing where Father testified, the court found that it was not in
the best interests of the children to offer Father services.
In a section “366.26 WIC Report,” HSA recommended that
the parental rights of Mother and Father be terminated and a
permanent plan for adoption be established for the children. It
said, “[M]other and father had an open dependency case with . . .
older siblings in the County of Ventura and had fled to Las
Vegas, Nevada for fear that the newborn babies would be
removed from their care.” It noted that the juvenile court
previously found Mother has “substance abuse issues, criminal
conduct, unaddressed mental health issues and reoccurring
domestic disputes with significant others.” Father “was found to
have substance abuse issues, criminal conduct, reoccurring
domestic disputes . . . and [he] should have known about the
mother’s substance abuse while pregnant with the children.” He
“failed to provide support and care or assume a parental role,
placing the children at risk of abuse or neglect.” On February 21,
2018, the court held a section 366.26 hearing, terminating
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Mother’s and Father’s parental rights and finding the children
are adoptable.
ICWA
On a parental notification of Indian status form, Father
reported the children may be eligible for membership in a
federally recognized Indian tribe. The paternal great-
grandmother “would know more.” He provided her name and
phone number.
HSA’s initial ICWA report stated that Mother and Father
“reported having Native American ancestry.” Mother claimed
Apache ancestry. In a subsequent report, HSA said it sent notice
to the eight federally recognized Apache tribes and received
responses that the children were not members or entitled to
enroll. These two HSA reports, however, contained nothing
about contacting the paternal great-grandmother that Father
had mentioned. The juvenile court found ICWA did not apply.
DISCUSSION
Jurisdiction
The parents contend the California court lacked subject
matter jurisdiction over the children. They claim only the
Nevada court has jurisdiction.
“The UCCJEA is the exclusive method for determining
subject matter jurisdiction for child custody proceedings in
California.” (In re A.C. (2017) 13 Cal.App.5th 661, 668.) A
dependency proceeding is a child custody proceeding within the
meaning of this act. (Ibid.) Family Code section 3421, “sets forth
four alternative bases for subject matter jurisdiction . . . . (Ibid.)2
Section 3421, subdivision (a) provides, in relevant part:
2 All further statutory references are to the Family Code.
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“[A] court of this state has jurisdiction to make an initial
child custody determination only if any of the following are true:
“(1) This state is the home state of the child on the date of
the commencement of the proceeding . . . .
“(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 . . . 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 . . . .
“(4) No court of any other state would have jurisdiction
under the criteria specified in paragraph (1), (2) or (3).” (Italics
added; In re A.C., supra, 13 Cal.App.5th at pps. 668-669.)
The parents contend the California court erred by
exercising jurisdiction over the children because Nevada was the
children’s “home state” and the Nevada court had jurisdiction.
HSA agrees that Nevada was initially the home state for
the children. It notes the children “lived from birth with persons
‘acting as a parent’ - i.e., their Nevada foster parents,” and it
consequently concedes that “Nevada was likely the twins’ ‘home
state.’”
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But HSA notes the California court obtained jurisdiction on
July 19, 2017, the date the Nevada court declined to exercise
jurisdiction. The Nevada court judge ruled: 1) “California does
not have a problem taking jurisdiction”; 2) “the parents have all
of their family in California”; 3) “Judge Cody stated their agency
[HSA] is willing to file a Petition there in California”; 4)
“California is to take jurisdiction of the case”; and 5) the Nevada
DFS agency must “transfer the files to California.”
Here the Nevada court determined that the California
court was “the more appropriate forum to determine the custody
of [the children].” (§ 3421, subd. (a)(3).) Where the out-of-state
court declines “to exercise jurisdiction over the children’s cases on
the ground California was the more appropriate forum,” the
California court has “subject matter jurisdiction over their cases
under section 3421, subdivision (a)(3), regardless of whether it
also had jurisdiction under section 3421, subdivision (a)(2).” (In
re A.C., supra, 13 Cal.App.5th at p. 678, italics added.)
The parents argue it was improper for the Nevada court to
communicate with the California court before declining
jurisdiction. But states have adopted uniform child custody acts
“to promote cooperation between state courts in custody matters.”
(State ex rel. Aycock v. Mowrey (Ohio 1989) 544 N.E.2d 657, 660.)
A court of one state may communicate with a court of another
state before deciding to decline jurisdiction. (§ 3410, subd. (a);
Johnson v. Ellis (Miss. 1993) 621 So.2d 661, 664.) Doing so
comports with common sense and ensures the judges are properly
informed of the facts.
The parents contend the Nevada court order divesting
jurisdiction was not accompanied by valid findings that
“California was the more convenient” forum.
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But decisions to decline jurisdiction are upheld without
findings by the out-of-state court. (In re A.C., supra, 13
Cal.App.5th at pp. 677-678.) “‘[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, . . . such . . . refusal is tantamount to a declination of
jurisdiction . . . .’” (Id. at p. 675, some italics added.) This is the
case even where the foreign court makes no findings on the more
convenient forum issue. In In re A.C., a foreign court did not
respond to e-mails regarding whether it would exercise
jurisdiction. The court held that “the Mexico judicial authorities’
inaction by failing to timely respond to the court’s e-mails was
tantamount to their declination to exercise jurisdiction over the
children’s cases on the ground California was the more
appropriate forum.” (Ibid., italics added.)
Here the Nevada court expressly found it was declining
jurisdiction in favor of the California court. That authorized the
California court to take jurisdiction even though the children
were born in Nevada. (§ 3421, subd. (a)(3); In re A.C., supra, 13
Cal.App.5th at p. 678; Schneer v. Llaurado (2015) 242
Cal.App.4th 1276, 1287; In re Marriage of Richardson (2009) 179
Cal.App.4th 1240, 1243.)
The parents contend the juvenile court abused its
discretion by agreeing to take jurisdiction because Nevada was
the better and more convenient forum. But both the Nevada and
California courts reasonably concluded California was the proper
forum. The California court found the parents’ residence in
California was “a factor on which state would have the most
appropriate contacts and information.” (In re Marriage of Nurie
(2009) 176 Cal.App.4th 478, 510 [parent’s “continued residence in
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California gives this state a legitimate connection to the custody
dispute”].)
The Nevada court was concerned “the parents” would not
“be able to come back to Nevada to participate in their case plan
services or visit.” In deciding the issue of an “inconvenient
forum,” courts may properly consider: 1) “[t]he distance between
the court in this state and the court in the state that would
assume jurisdiction” (§ 3427, subd. (b)(3)); and 2) “[t]he degree of
financial hardship to the parties in litigating in one forum over
the other” (id., subd. (b)(4)). The Nevada court noted: 1) Father
has “a criminal case in California,” 2) Mother has “a criminal
hearing in California today,” and 3) Mother has “relatives in
California.” It noted its concern about “Nevada keeping the case
when [the] parents may have just [come] to Las Vegas to give
birth to the children” and then return home to California.
HSA also argued the Nevada court’s “decision made sense”
because: 1) California was better suited to hear the case; 2) the
California court recently had a dependency case involving the
children’s half-siblings; 3) the California court was familiar with
the family; 4) Mother told the Nevada social worker “she lived in
Oxnard and came to Nevada only to give the [children] to her
cousin”; and 5) the extended family lived in California.
A relevant factor is “[t]he familiarity of the court of each
state with the facts and issues in the pending litigation.” (§ 3427,
subd. (b)(8).) The juvenile court had that familiarity. The
parents have not shown why the factors HSA highlights do not
support the court’s decision.
The two courts could also properly consider why the
parents went to Nevada. The findings of the Nevada court show
the parents did not go there to establish residency. HSA said
their motive was connected to the pending California court’s
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dependency case involving the twins’ older siblings and the
parents. In its report to the court, it said, “[M]other and . . .
father had an open dependency case with . . . older siblings in the
County of Ventura and had fled to Las Vegas, Nevada for fear
that the newborn babies would be removed from their care.”
(Italics added.) Both courts recognized the roots of the Nevada
case were in the earlier California dependency proceeding.
The parents claim the juvenile court prevented them from
presenting “evidence on the question of which forum [Nevada or
California] was more convenient.” HSA responds the record does
not support this claim. We agree.
At the August 1, 2017, hearing, the parents appeared with
their counsel. The juvenile court informed the parties that the
Nevada court decided California should exercise jurisdiction.
Mother’s counsel said, “[M]y client continues to believe that
Nevada would have been the appropriate forum. The children
remain in Nevada.” He requested the court “to reserve” that
issue. The court responded, “I guess we can revisit it.” The court
thereafter held 10 hearings on this case.
HSA contends that after the August 1st hearing the
parents abandoned the inconvenient forum issue. We again
agree. They had opportunities to raise the issue and present
evidence in the 10 hearings after the August 1st hearing, but
they did not do so at any of those hearings. Nor did the juvenile
court prevent them from presenting evidence on this issue.
The parents argue the Nevada court’s order declining
jurisdiction is invalid.
HSA responds: 1) the parents participated in the Nevada
proceedings, 2) they had the right to appeal the Nevada decision,
3) they did not appeal, and 4) they are consequently making an
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untimely and improper collateral attack on a final Nevada
judgment. We agree.
In the juvenile court, Mother’s counsel said, “I think the
Nevada court has made a decision that’s not a decision of this
Court and so [the parents’] remedy would lie in Nevada I would
assume.” (Italics added.) But the parents did not appeal the
Nevada court judgment and it is now final.
Section 3453 provides, “A court of this state shall accord
full faith and credit to an order issued by another state . . . .” “A
final judgment in one State, if rendered by a court with
adjudicatory authority over the subject matter and persons
governed by the judgment, qualifies for recognition throughout
the land.” (Baker v. General Motors Corp. (1998) 522 U.S. 222,
233 [139 L.Ed.2d 580, 592], italics added.) Final judgments of
other states are conclusive on issues properly resolved in those
judgments. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951;
In re Mary G. (2007) 151 Cal.App.4th 184, 201.)
ICWA
The parents claim HSA did not properly investigate the
possible Indian heritage of the children. They contend the
juvenile court erred by ruling ICWA did not apply.
Under ICWA, the “juvenile court and social services
agencies have an affirmative duty to inquire at the outset of the
proceedings whether a child who is subject to the proceedings is,
or may be, an Indian child.” (In re K.M. (2009) 172 Cal.App.4th
115, 118-119.) The social services agency has a continuing duty
to provide additional tribal notice if it discovers an ICWA notice
error or omission. (In re Desiree F. (2000) 83 Cal.App.4th 460,
471-472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424
[“Notice is mandatory, regardless of how late in the proceedings a
child’s possible Indian heritage is uncovered”].)
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In the “parental notification of Indian status” form, Father
said the paternal great-grandmother would have information
about the family’s Indian heritage. The parents claim HSA did
not interview her.
HSA agrees and concedes that 1) it “has not substantially
complied with ICWA notice requirements,” 2) the order
“terminating parental rights should be vacated,” and 3) “[t]he
reversal . . . [should] be only for the limited determination of the
applicability of ICWA.”
DISPOSITION
The orders terminating parental rights are reversed and
the matter is remanded with instructions for the juvenile court 1)
to require HSA to interview the great-grandmother about
possible Indian heritage, and 2) to determine whether ICWA
applies; and 3) if the court rules ICWA does not apply, to
reinstate the orders terminating parental rights.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant A.C.
Mitchell Keiter, under appointment by the Court of Appeal,
for Defendant and Appellant E.R.
Leroy Smith, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.
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