A.M. v. Superior Court ( 2021 )

Filed 4/20/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
A. M., D078117
Petitioner, (Super. Ct. No. 19FL000521C)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
E. M. et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Loren G. Freestone, Judge.
Petition granted.
Bickford, Blados & Botros and Andrew J. Botros, for Petitioner.
No appearance for Respondent.
Feuerstein, Murphy & Beals and Jenna E. Hackett, for Real Parties in
Interest.
By petition for writ of mandate A.M. (Mother) challenges the family
court’s ruling subjecting her and her child (Minor) to its continued
jurisdiction to adjudicate the paternal grandparents’ petition for visitation.
We agree with mother that writ relief is warranted in this case, and issue a
peremptory writ of mandate directing the court to vacate its October 22, 2020
order and enter a new order dismissing the petition for lack of subject matter
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement
Act (1997) (UCCJEA; Fam. Code, §§ 3400, et seq.1)
FACTUAL AND PROCEDURAL BACKGROUND
Mother’s husband and father of her child died tragically in October
2018 while performing his job trimming trees. On January 15, 2019, father’s
parents, R.M. and E.M. (Grandparents), filed a petition requesting visitation
with Minor under section 3103. Concurrently with the petition,
Grandparents filed a jurisdictional declaration in accordance with the
UCCJEA stating Minor had lived in San Diego since birth in November 2015.
Before any action on the petition, on January 31, 2019, Mother filed an
ex parte application for an order allowing her and her child to move from San
Diego to Washington state to be near Mother’s parents and other close family
members. The family court denied the application on the ground it was “not
an emergency.”
A family court services mediation took place on February 13, 2019 and
Mother, who was by then living in Washington with her child, participated by
phone.2 In the mediation, Grandparents sought visitation with Minor of four
1 Subsequent undesignated statutory references are to the Family Code.
2 Mother has returned to San Diego twice since moving to Washington,
both times for the purposes of this litigation.
2
weekends during the year, two weeks during summer and winter breaks, and
weekly video calls with Minor. Mother opposed all visitation. She expressed
concern about Grandparents’ drinking habits and a paternal great uncle who
lived with them who was a habitual drug user. Mother also explained she
had never had a positive relationship with Grandparents, and that their son
had been abusive to her before his death.
A trial on the petition was scheduled for April 22, 2019, but did not go
forward. Instead, the court issued a minute order stating it was not “inclined
to make any interim orders regarding visitation pending the future hearing
date” on June 26, 2019. Before the continued hearing, Mother filed her
opposition to the petition. Thereafter, she submitted an ex parte application
seeking another continuance on the grounds the parties were engaging in
settlement discussions. The court granted the application and set the trial
for November 6, 2019 with a status conference on August 28, 2019.
On July 11, 2019, the court entered a stipulated order, providing the
parties would “participate in reunification counseling/therapy sessions with a
mental health professional” in Washington. On November 6, 2019, the court
entered another stipulated order agreeing to a specific therapist and other
terms of the therapy. The order also took the November 6, 2019 trial “off
calendar without prejudice.”
No further proceedings occurred until June 24, 2020, when
Grandparents filed an ex parte request that the court set the matter for a
two-day trial to determine visitation. Mother opposed the request, and on
June 25, 2020 filed her own application for an order terminating the court’s
jurisdiction under the UCCJEA. Mother’s accompanying declaration stated
she had participated in reunification therapy but that it had failed because of
Grandparents’ unwillingness to join. Mother also asserted that San Diego
3
was not the proper venue for the case and that she could not afford to travel
here for the proceedings.
Mother’s memorandum of points and authorities in support of her
request argued the court did not have continuing jurisdiction under the
UCCJEA because she and her child no longer resided in California, and
alternatively, if the court did find jurisdiction it should decline to exercise it
on the grounds of inconvenient forum after an evidentiary hearing on the
issue. The court denied Mother’s application without prejudice and set an
evidentiary hearing for September 1, 2020.
On June 26, 2020, Mother filed a request for order, repeating her
assertion that the court did not have continuing jurisdiction over the matter
under the UCCJEA and that San Diego was not the proper venue for the
case. Grandparents opposed the request. A hearing on Mother’s request for
order took place on September 23, 2020. After argument, the court denied
the request. The court stated that it continued to have jurisdiction because
“there [are] still significant connections to the state, at least the child
potentially has that as well” and Grandparents “still reside here and they are
the ones seeking and bringing the petition.”
The court also noted Mother had conceded jurisdiction at the time the
petition was initially filed, that Mother had not raised the jurisdictional issue
at the time the case was originally set for trial, and that she had previously
entered stipulated proposed orders without challenging the court’s
jurisdiction. The court concluded by stating it had “never relinquished any
jurisdiction … so therefore finds it does have jurisdiction under the UCCJEA
4
to continue to hear this matter.” The court set a trial setting conference for
December 15, 2020.3
On October 21, 2020, Mother filed an ex parte request for the court to
issue Findings and Order After Hearing (FOAH), which the court entered the
next day. The order “denies [Mother’s] request pursuant to Family Code
section 3422” and “finds [Minor], and [Mother] moved to the State of
Washington on February 13, 2019, but the court continues to have
jurisdiction over this matter as there was no dispute as to initial
jurisdiction.” The order further states “there are significant connections to
the State of California as the [Grandparents] continue to reside in California
and they are the party bringing the petition” and that the court “finds that it
never relinquished jurisdiction and the parties never raised the issue at the
time the matter was originally set for trial, and therefore finds it does have
jurisdiction under the UCCJEA to hear this matter.”
On October 23, 2020, Mother filed the instant petition for writ of
mandate and request for a stay challenging the FOAH. This court stayed the
proceedings in the family court and issued an order to show cause why the
relief requested should not be granted. Grandparents filed a return and
Mother replied.
DISCUSSION
Mother agrees the family court had jurisdiction under the UCCJEA at
the time Grandparents filed their petition for visitation. She argues,
however, that after the court’s initial custody decision on April 22, 2019
declining to rule on Grandparents’ request for visitation, the court was
required to make new jurisdictional findings before entering each stipulated
3 Mother’s petition states trial is not likely to commence until August
2021.
5
order. Mother asserts that the court’s failure to do so renders those orders
void. Alternatively, she contends the court erred by denying her subsequent
motion to terminate its jurisdiction under section 3422, subdivision (a)(2).4
Grandparents respond that because jurisdiction under the UCCJEA is not
fundamental, Mother forfeited her jurisdictional challenge by not challenging
the court’s initial jurisdiction and agreeing to the stipulated orders.5
I
“The UCCJEA is a model law that ‘arose out of a conference of states in
an attempt to deal with the problems of competing jurisdictions entering
conflicting interstate child custody orders, forum shopping, and the drawn
out and complex child custody legal proceedings often encountered by parties
where multiple states are involved.’ [Citation.] To date, every state except
Massachusetts has enacted the UCCJEA, and the District of Columbia and
the United States Virgin Islands have enacted it as well. [Citation.]
4 Mother’s petition challenges only “the Court’s erroneous exercise of
subject matter jurisdiction” and not “the Court’s ruling that San Diego is the
more appropriate forum.”
5 In her petition, Mother asserts that while an appeal would lie from the
judgment in the case, writ relief to address the court’s fundamental subject
matter jurisdiction is especially appropriate where, like here, the case
involves a child custody dispute. She argues adjudicating the issue will avoid
unnecessary litigation in the wrong forum. Real parties make no argument
that writ relief should not be granted. We agree with Mother that writ relief
is appropriate to resolve this dispute. (See Harden v. Superior Court (1955)
44 Cal.2d 630, 635 [“It is the general rule ‘that the remedy in the ordinary
course of law by an appeal from the judgment at the end of the trial is not
adequate when the court has no jurisdiction to proceed with the action and no
appeal is available before final judgment.’ ”]; Keith R. v. Superior Court
(2009) 174 Cal.App.4th 1047, 1057 [“There is a particular need to accelerate
the writ process in child custody disputes where children grow up quickly and
have immediate needs.”].)
6
California adopted the UCCJEA effective January 1, 2000, and it is codified
in section 3400 et seq.” (In re J.W. (2020) 53 Cal.App.5th 347, 354‒355
(J.W.).)
“The UCCJEA determines the proper jurisdictional situs as between
interested states for litigation of child custody determinations—which
includes virtually any custody or visitation dispute (§ 3402, subd. (c)). As
applicable here, the UCCJEA applies in a ‘child custody proceeding’—which,
is defined in part as ‘a proceeding in which legal custody, physical custody, or
visitation with respect to a child is an issue’ (§ 3402, subd. (d))—commenced
on or after January 1, 2000. (§ 3465.) ‘ “It is well settled in California that
the UCCJEA is the exclusive method of determining subject matter
jurisdiction in custody disputes involving other jurisdictions.” ’ [Citations.]
Accordingly, UCCJEA jurisdictional requirements must be satisfied
whenever a California court is called upon to make either an initial or a
modified custody determination.” (In re Marriage of Kent (2019) 35
Cal.App.5th 487, 493 (Kent), emphasis added.)
The provisions of the UCCJEA primarily at issue here are sections
3421 and 3422. Section 3421 states, in relevant part: “Except as otherwise
provided in Section 3424 , a court of this state has jurisdiction to make an
initial child custody determination only if … [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).)
Under section 3421, “[s]ubject matter jurisdiction either exists or does
not exist at the time an action is commenced. [Citation.] There is no
provision in the UCCJEA for jurisdiction by reason of the presence of the
7
parties or by stipulation, consent, waiver, or estoppel. [Citation.] [¶] Under
the UCCJEA, the state with absolute priority to render an initial child
custody determination is the child’s home state on the date of commencement
of the first custody proceeding or, alternatively, the state which had been his
home state within six months before commencement if the child is absent
from the home state but a parent continues to live there. (§ 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).)” (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 491
(Nurie).)
Once initial jurisdiction is established under section 3421, section 3422
provides the basis for terminating jurisdiction. Under that provision, “[a]
court that properly acquires initial jurisdiction has exclusive, continuing
jurisdiction unless one of two subsequent events occurs: (1) a court of the
issuing state itself determines that ‘neither the child, nor the child and one
parent, nor the child and a person acting as a parent have a significant
connection with this state and that substantial evidence is no longer
available in this state concerning the child’s care, protection, training, and
personal relationships,’ or (2) there is a judicial determination by either the
issuing state or any other state that ‘the child, the child’s parents, and any
person acting as a parent do not presently reside in’ the issuing state.
(§ 3422, subd. (a)(1) & (a)(2).)” (Nurie, supra, 176 Cal.App.4th at p. 491.)
The UCCJEA’s definitional provision, codified in California at
section 3402, defines “ ‘persons acting as parents’ ” as “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,
8
within one year immediately before the commencement of a child custody
proceeding; and (2) has been awarded legal custody by a court or claims a
right to legal custody under the law of this state.” (§ 3402, subd. (m).)
“ ‘The UCCJEA takes a strict “first in time” approach to jurisdiction.
Basically, subject to exceptions not applicable here [citations], once the court
of an appropriate state (Fam. Code, § 3421, subd. (a)) has made a “child
custody determination,” that court obtains “exclusive, continuing
jurisdiction....” (Fam. Code, § 3422, subd. (a).) The court of another state: [¶]
(a) Cannot modify the child custody determination (Fam. Code, §§ 3421,
subd. (b), 3422, subd. (a), 3423, 3446, subd. (b)); [and] [¶] (b) Must enforce the
child custody determination (Fam. Code, §§ 3443, 3445, 3446, 3448, 3453)....’ ”
(Nurie, supra, 176 Cal.App.4th at p. 491.)
“[A]s with any statute, interpretation of the UCCJEA is a question of
law we review de novo.” (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276,
1287.) However, the findings of fact made by the family court in determining
jurisdiction under the UCCJEA are “reviewed under the deferential
substantial evidence standard” and its “resolution of conflicts in the evidence
and credibility assessments are binding on this court.” (Id. at pp. 1286,
1287.)
II
There is no dispute that the family court had jurisdiction under
section 3421 to make an initial custody determination when Grandparents
filed their petition seeking visitation with Minor. The matter is also
straightforward as it relates to the entry of the stipulated orders. As Mother
states in her petition, and as described above, “jurisdiction is not lost the
moment the child and Mother leave California because there still needs to be
judicial determination that jurisdiction has been lost.” “It is not the parties’
9
departure itself that terminates the decree state’s exclusive, continuing
jurisdiction. Rather, it is when a ‘court ... determines’ that all parties have
ceased residing there that jurisdiction is lost. (§ 3422, subd. (a)(2).)” (Nurie,
supra, 176 Cal.App.4th at pp. 500‒501.)
As Mother points out, section 3048, subdivision (a)(1) requires each
order in a visitation proceeding to contain “[t]he basis for the court’s exercise
of jurisdiction.” In this case, the court failed to include this information in
the stipulated orders. Even assuming those orders qualify as visitation
orders (see § 3402, subd. (c)), however, we conclude the court’s error does not
require reversal since it continued at that time to properly exercise
jurisdiction in accordance with section 3421. Specifically, as we shall discuss,
no court had yet determined that the requirements of section 3422 were
satisfied. Accordingly, we decline to hold the stipulated orders void.6
III
We do agree with Mother, however, that the family court erred in
finding it had continuing jurisdiction to adjudicate Grandparents’ petition for
visitation once Mother objected and sought a judicial determination. As set
forth above, the family court had jurisdiction under section 3421 until the
requirements of section 3422 were satisfied. Under subdivision (a)(2) of
section 3422, the family court’s jurisdiction would terminate once a “court of
this state or a court of another state determines that the child, the child’s
parents, and any person acting as a parent do not presently reside in this
state.” Mother objected to the court’s continuing jurisdiction in June 2020,
6 The Georgia case Mother relies on, Plummer v. Plummer (Ga. 2019)
305 Ga. 23, is in accord. (See Plummer, at p. 27 [holding Georgia court
retained jurisdiction in child custody matter despite parents and child’s
residence in Florida and Virginia because there had been no “judicial finding
that neither the child nor the child’s parents reside in the state”].)
10
arguing its jurisdiction was no longer viable under section 3422,
subdivision (a)(2). The court rejected Mother’s argument, finding Mother had
forfeited the issue by failing to object to the court’s jurisdiction earlier in the
proceeding and that there were still “significant connections to the state”
because Grandparents live here.
As Mother points out, it is an unsettled question of law whether the
jurisdiction created by the UCCJEA is fundamental and therefore unable to
be forfeited. (See J.W., supra, 53 Cal.App.5th at p. 364 [“ ‘of the states that
have considered the jurisdictional issue, some refer to the UCCJEA as a
subject-matter-jurisdiction statute, while others do not. The issue is not
settled.’ ”].) In Kent, this court addressed whether a California court’s
modification of a North Carolina custody and visitation order after the North
Carolina court exercised initial jurisdiction under that state’s equivalent of
section 3421 was void because section 3423 had not been satisfied.7 Kent
concluded that the trial court did not have jurisdiction, despite the parties’
agreement to have the matter decided here, and reversed the order. (Kent,
supra, 35 Cal.App.5th at p. 495.)
7 Section 3423 governs the modification of custody determinations made
by the court of another state. It provides that “Except as otherwise provided
in Section 3424 [dealing with emergency situations], a court of this state may
not modify a child custody determination made by a court of another state
unless a court of this state has jurisdiction to make an initial determination
under paragraph (1) or (2) of subdivision (a) of Section 3421 and either of the
following determinations is made: [¶] (a) The court of the other state
determines it no longer has exclusive, continuing jurisdiction under Section
3422 or that a court of this state would be a more convenient forum under
Section 3427. [¶] (b) A court of this state or a court of the other state
determines that the child, the child’s parents, and any person acting as a
parent do not presently reside in the other state.”
11
Central to Kent’s holding was the principle that the jurisdictional
requirements of the UCCJEA could not be forfeited by the parties. There, the
trial court had issued its order modifying a term of the North Carolina
visitation order based on the parties’ oral agreement during the modification
hearing that the court had jurisdiction. (Kent, supra, 35 Cal.App.5th at
p. 492.) Kent rejected the father’s argument that the court’s exercise of
jurisdiction was a procedural error subject to a harmless error analysis. In so
doing, we stated “[b]ecause the family court’s consideration of Mother’s
[request] (to modify the North Carolina Order) was an act in excess of the
California court’s jurisdiction—i.e., not merely a procedural error, but a
violation of a clear restriction or limitation on the court’s power to act
[citation]—the [order] may be reversed without a showing by Mother that she
was prejudiced by this error.” (Id. at p. 496.)
Grandparents rely on J.W. to support their position that Mother
forfeited her opportunity to object to California jurisdiction. J.W. held that a
father’s jurisdictional challenge based on the UCCJEA was forfeited.
However, J.W. dealt with the very different considerations of a dependency
case. In J.W., the father, a Louisiana resident, raised his jurisdictional
challenge for the first time on appeal from the termination of his parental
rights and without any evidence of a competing custody order from Louisiana.
(J.W., supra, 53 Cal.App.5th at pp. 355, 362.) J.W. held that the UCCJEA
did not create fundamental subject matter jurisdiction, and thus could be
forfeited by a party’s failure to assert it in the juvenile court. (Id. at p. 365.)
Critically, the Court of Appeal’s decision was predicated on the important
public policy of finality in dependency proceedings. (See id. at p. 361 [“Our
Supreme Court has stressed the importance of finality in the dependency
context as well, noting that in such matters the state’s ‘interest in
12
expeditiousness is strong indeed,’ but that ‘[i]ts interest in finality is stronger
still.’ … [¶] A finding that a termination order entered without UCCJEA
jurisdiction was ‘ “ ‘null and void’ ab initio” ’ (citation) would core these public
policy considerations.”], id. at pp. 363–364.)
J.W. is a far different case than this one. Unlike the father in J.W.,
Mother objected in the trial court after her attempts to settle Grandparents’
visitation request failed. She raised the jurisdictional issue as soon as
Grandparents sought to reinstitute a trial date. Further, this case deals with
a visitation request by estranged grandparents, not a parent whose rights
have been terminated and who seeks to disrupt a child’s permanent
placement with adoptive parents. The potential disruption of the
fundamental jurisdiction of the dependency court, whose statutory role is
protection of a minor whose well-being is in jeopardy, is far different from the
termination of the family court’s jurisdiction in this case. Further, unlike
J.W., this is not a case where Mother “silently accede[d] to jurisdiction, or
neglect[ed] to raise it, for years ….” (J.W., supra, 53 Cal.App.5th at p. 367.)
The public policy considerations at issue in J.W. that formed the basis for its
decision to prioritize the dependency scheme over the UCCJEA are not
13
present here.8 (See In re Alexander P. (2016) 4 Cal.App.5th 475, 488 [“The
juvenile court is … granted ‘ “sole and exclusive jurisdiction” ’ over issues of
custody, visitation, and guardianship upon filing of a dependency petition.”]
Given the facts before this court, we follow Kent to conclude that
Mother did not forfeit her right to seek adjudication of her jurisdictional
challenge under section 3422. Further, on this record, it is clear the court
erred by denying Mother’s request for order and concluding it had continuing
jurisdiction under section 3422. As discussed, under that statute, once the
court has taken initial jurisdiction under section 3421, it has continuing
jurisdiction until one of two things occur: “A court of this state determines
that neither the child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection with this state and
that substantial evidence is no longer available in this state concerning the
child’s care, protection, training, and personal relationships” or “[a] court of
this state or a court of another state determines that the child, the child’s
parents, and any person acting as a parent do not presently reside in this
state.” (§ 3422, subd. (a), italics added.)
8 Mother filed a request that this court take judicial notice of parts of the
legislative history of the UCCJEA, which she contends show the legislature’s
intent to conform the UCCJEA’s jurisdictional provisions to the federal
Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) and contradict
J.W.’s statement that there is “no indication in the legislative history that
our Legislature intended ‘jurisdiction’ in section 3421 to mean fundamental
jurisdiction when it enacted the UCCJEA.” (J.W., supra, 53 Cal.App.5th at
p. 365.) We deny the request to take judicial notice of these publicly available
documents. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19
Cal.4th 26, 46, fn. 9, as modified (Sept. 23, 1998) [“A request for judicial
notice of published material is unnecessary. Citation to the material is
sufficient.”].)
14
The family court disregarded this second clause of section 3422 and
looked only to the first, finding that “there are significant connections to the
State of California as the [Grandparents] continue to reside in California and
they are the party bringing the petition.” As the court’s FOAH stated,
Mother and Minor “moved to the state of Washington on February 13, 2019”
and it was undisputed that Mother and Minor “do not presently reside in this
state.” (§ 3422, subd. (a)(2).) In light of this fact, Grandparents’ residence
here alone is insufficient to support the court’s continued jurisdiction. (See
National Conference of Commissioners on Uniform State Laws, UCCJEA,
Official Comments to § 202, p. 28 [“[A] remaining grandparent or other third
party who claims a right to visitation, should not suffice to confer exclusive,
continuing jurisdiction on the State that made the original custody
determination after the departure of the child, the parents and any person
acting as a parent.”].)9 In sum, the court’s jurisdictional order was not
supported by the evidence before it and the court’s failure to consider the
undisputed fact that Mother and Minor no longer reside in California
warrants reversal.
DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to
vacate its October 22, 2020 order and enter a new order dismissing the
petition for lack of subject matter jurisdiction under the UCCJEA. The stay
9 “The official commentary from the drafters of the UCCJEA is entitled
to substantial weight.” (Schneer v. Llaurado, supra, 242 Cal.App.4th at
p. 1288, fn. 6.)
15
issued on November 20, 2020 is vacated upon finality of the opinion as to this
court. (Cal. Rules of Court, rule 8.490(b)(2).)
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
GUERRERO, J.
16