In re A.C. ( 2017 )

Filed 6/30/17; pub. order 7/21/17 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.C. et al., Persons Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND D071772
HUMAN SERVICES AGENCY,
Plaintiff and Respondent, (Super. Ct. No. J519194A, B)
v.
K.C.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
Niti Gupta, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
K.C. (Mother) appeals orders of the juvenile court terminating parental rights to
her sons A.C. and E.C. under Welfare and Institutions Code section 366.26 and placing
them for adoption. She contends the court erred by concluding it had subject matter
jurisdiction over her children's cases under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA, Fam. Code, § 3400 et seq.).1 The parties agree that Mexico
is her children's home state. Although the court sent two e-mails to Mexico courts
inquiring whether they declined to exercise jurisdiction over the children's cases in favor
of California's assumption of jurisdiction, Mother argues on appeal that the court erred by
not verifying and authenticating on the record that those e-mails were sent to the correct
e-mail addresses and appropriate judicial authorities in Mexico and that those e-mails
were actually received by those authorities. Mother argues that without such verification
and authentication, the record does not show that the Mexico courts affirmatively
declined to exercise home state jurisdiction of the cases under the UCCJEA based solely
on their failure to timely respond to the juvenile court's e-mails. She further argues that,
in any event, the court could not exercise subject matter jurisdiction under section 3421,
subdivision (a)(2), because there is no evidence showing that the children and at least one
parent had significant connections to California other than mere physical presence or that
there is substantial evidence available in California concerning the children's care,
protection, training, and personal relationships. We affirm the orders.
1 All further statutory references are to the Family Code unless otherwise specified.
2
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2015, Mother, who was born in California, was deported from
Mexico to the United States at the San Ysidro Port of Entry. Her two sons, A.C. and
E.C., were with her when San Diego Police Department officers responded to a call
regarding a female (Mother) who might be unfit to care for her two children. On their
arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting
on the ground with Mother. Mother appeared manic and confused about her detention
and expressed irrational beliefs (e.g., she could communicate telepathically). Based on
their belief Mother was gravely disabled and unable to care for herself and her two
children, the officers detained Mother pursuant to Welfare and Institutions Code section
5150 and transported her to a San Diego County mental health facility for evaluation.
Her children were transported to the Polinsky Children's Center (PCC).
On May 26, the San Diego County Health and Human Services Agency (Agency)
filed a Welfare and Institutions Code section 300, subdivision (b), juvenile dependency
petition for each child, alleging the child was at substantial risk of serious physical harm
or illness because of Mother's inability to care for the child. Agency's detention report
summarized Mother's extensive criminal history, including an April 16, 2015, arrest in
San Luis Obispo, California, for bribing an officer, carrying a concealed firearm in a
vehicle, and being a felon or addict in possession of a firearm. Mother did not provide
Agency with the identity of her children's father(s).
On May 27, the juvenile court issued orders finding prima facie showings had
been made under Welfare and Institutions Code section 300, subdivision (b), detaining
3
the children at PCC or an approved foster home, and setting jurisdiction and disposition
hearings for June 16. Although Mother had been released from the mental health facility
the previous day and had received notice of the detention hearings, she did not appear at
the hearings.
In Agency's report for the jurisdiction and disposition hearings, it reported that
Mother stated she and her children lived in Mexico and her children had Mexico
citizenship. Mother identified M.C. as the children's father, but stated he was not
involved in their lives. A maternal aunt confirmed Mother initially lived in Monterey,
California, but relocated to Mexico with M.C. after he was deported there. Mother
denied having mental health problems. Although Mother visited her children at PCC on
June 5, she did not show up for a scheduled visit three days later or for a scheduled
appointment with an Agency social worker. Agency recommended that the court declare
the children dependents of the court and order reunification services and supervised visits
for Mother.
On June 16, the court held the jurisdiction and disposition hearings. Mother did
not appear at the hearings. Agency raised the issue of the court's jurisdiction under the
UCCJEA based on Mother's report that she had lived in Mexico for the past nine years
and her children had resided in Mexico with her. Agency recommended that the court
take temporary emergency jurisdiction under the UCCJEA and then contact Mexico
courts to determine whether they were interested in exercising jurisdiction over the case
before deciding the question of its subject matter jurisdiction. The court continued the
hearings until July 15 and stated it would send an e-mail to Mexico authorities to
4
determine whether they were willing to defer subject matter jurisdiction to it. Agency
confirmed the court's understanding that Mother was currently living in Rosarito,
Mexico.
Agency thereafter learned that a Mexico birth record showed A.C. was born in
Mexico, but no birth record for E.C. was located. Mother stated E.C. was born in
Tijuana, Mexico, but his birth apparently was not registered in either Mexico or the
United States.
At the July 15 continued hearings, the court stated on the record its attempts to
contact Mexico court authorities to ascertain whether Mexico declined to exercise
jurisdiction over the cases in favor of California assuming jurisdiction, stating:
"With respect to UCCJEA, I have handed the lawyers, and I have
filed in the court file, my two written attempts to contact the judges
that this court is on notice are the presiding judges over dependency
and family court matters within Baja California, including the
Rosarito County . . . or City within Baja California. I made two
contacts. I have made several telephone calls to the numbers that I
had with no success in getting through to these two judges, as well
as two written e-mail inquiries—one Thursday, July 2nd, the other
Monday, July 6th.
"I did indicate that if I did not hear back from either judge regarding
opposition to this court taking subject matter jurisdiction prior to
July 14th, 2015, then I would assume that the Country of Mexico is
deferring jurisdiction to San Diego County.
"I have not heard from either judge. We are past the deadline that I
asked for a response."2
2 The record on appeal includes copies of the juvenile court's two e-mails and its
contact information for the two recipients of its e-mails and telephone calls (i.e., the
specific street addresses, telephone numbers, and e-mail addresses of the Baja California
and Baja California Sur family court authorities that the juvenile court used in its
5
The court then found it had complied with the UCCJEA by giving notice to Mexico of
the proceedings in these cases and of Mexico's ability to go forward with its own
proceedings in its jurisdiction. The court further found that because it had not received
any response to its inquiries, it took subject matter jurisdiction over the cases in lieu of
the Mexico courts taking jurisdiction and continued the hearings to a future date. Neither
Mother nor M.C. appeared at the hearings.
Agency subsequently learned, and reported to the court, that Mother had been
arrested on July 23 at the United States/Mexico border and transported to the San Luis
Obispo County jail on a felony warrant arising out of the April 2015 charges against her.
While in custody, Mother told an Agency social worker that she misses her children and
would like them returned to her. Mother was released from custody on September 17.
attempts to contact them). Both the July 2 and July 6 e-mails were addressed to "Lic.
Maria Esther Renteria Ibarra and Lic. Daniel Gallo Rodriguez" of the Baja California
Family Courts and identified Mother, A.C., E.C., and the children's father by name and
date of birth (except for the father). The e-mails stated that the court had unsuccessfully
attempted to reach them by telephone. The e-mails then described the events leading up
to the children's detention in San Diego and Mother's statement that she and the children
had lived in Mexico for the past nine years, most recently in Rosarito, Baja California,
Mexico. The e-mails then asked two questions of their recipients: "First, are there any
court orders in Rosarito, Baja California regarding the placement of either child with
either mother or father? Second, does Mexico decline to exercise jurisdiction over this
case in favor of California assuming jurisdiction?" The court then stated: "If there are no
custody orders in Rosarito and Mexico is not planning to exercise jurisdiction over these
children, then we will proceed with our case in California and make a decision about the
appropriate placement of the children." The court informed them it could be reached at
the e-mail address shown on its e-mails or at its telephone number (which it provided).
The e-mails concluded with the statement: "If I do not hear from you on or before July
14, 2015, I will assume there are no court orders regarding these children in Rosarito and
that you are declining to exercise jurisdiction in Mexico."
6
The children were placed together in a confidential foster home and were doing well.
Agency also learned that the children's maternal grandmother lived in Carmel, California.
Their paternal grandfather also lived in the United States. He told Agency that he had
often provided daily care for A.C. and assisted with taking him to medical appointments.
At the September 22 continued hearings, Mother appeared, was advised of the
dependency petitions, and denied their allegations. She was advised of the six-month
reunification periods and reunification services available to her. The court set contested
jurisdiction and disposition trials for October 29.
At the October 29 trials, Mother did not appear. The court found it had
jurisdiction, declared the children dependents of the court, removed them from parental
care, placed them in foster care, ordered reunification services for Mother, and set six-
month review hearings.
Mother had no contact with Agency from September 22, 2015, through April 6,
2016. Mother was in custody in the San Luis Obispo County jail from April 1, 2016,
through April 26, 2016. On April 15, an Agency social worker spoke with Mother who
stated she stayed at her Tijuana home from October 2015 through early January 2016,
visited her mother in Monterey, California, for three weeks in January, and then returned
to her Tijuana home until she was held in a Tijuana jail in March and transferred to the
7
San Luis Obispo County jail. On May 12, Mother visited A.C. and E.C. at Agency's
office.3 Mother was informed of the next court hearings.
At the May 23 contested six-month review hearings, the court terminated Mother's
reunification services and set Welfare and Institutions Code section 366.26 hearings to
select permanent plans for the children.
On February 14, 2017, after several continuations, the Welfare and Institutions
Code section 366.26 hearings were held.4 Neither Mother nor M.C. appeared at the
hearings. Agency's report stated the children were adoptable and their current caregiver
was willing to adopt them. Agency recommended that the court terminate the parental
rights of Mother and M.C. and select adoption as the children's permanent plans. The
court found the children were likely to be adopted and none of the exceptions to adoption
applied, selected adoption as their permanent plans, and terminated the parental rights of
Mother and M.C.
Mother timely filed a notice of appeal challenging the court's February 14, 2017
orders.
3 Her only visit with the children prior to this date was on June 5, 2015, more than
11 months earlier.
4 Mother apparently was in custody at a Tijuana penitentiary at least some of the
time between the May 23, 2016 and February 14, 2017 hearings.
8
DISCUSSION
I
The UCCJEA Generally
The UCCJEA is the exclusive method for determining subject matter jurisdiction
for child custody proceedings in California. (§§ 3421, subd. (b), 3402, subd. (d); In re
M.M. (2015) 240 Cal. App. 4th 703, 715; In re Gino C. (2014) 224 Cal. App. 4th 959, 965.)
A dependency action is a child custody proceeding under the UCCJEA. (§ 3402, subd.
(d); In re M.M., at p. 715.) Subject matter jurisdiction over a dependency action or other
child custody proceeding either exists or does not exist at the time the petition is filed,
and jurisdiction under the UCCJEA may not be conferred by mere presence of the parties
or by stipulation, consent, waiver, or estoppel. (In re A.M. (2014) 224 Cal. App. 4th 593,
597-598; Brewer v. Carter (2013) 218 Cal. App. 4th 1312, 1316-1317.)
Section 3421 sets forth four alternative bases for subject matter jurisdiction in
child custody proceedings, providing:
"(a) Except as otherwise provided in Section 3424, 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, 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
9
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)."
A child's home state has priority over other jurisdictional bases. (§ 3421, subd. (a)(1);
Brewer v. Carter, supra, 218 Cal.App.4th at p. 1317.)
On appeal, "when the facts are contested, a trial court's jurisdictional finding under
the UCCJEA is reviewed under the deferential substantial evidence standard. [Citations.]
When conducting a substantial evidence review, we must review the entire record in the
light most favorable to the prevailing party, resolve all conflicts in the evidence in favor
of the ruling or judgment being reviewed, and indulge all reasonable inferences in
support of the family [or juvenile] court's findings. [Citation.] The family [or juvenile]
court's resolution of conflicts in the evidence and credibility assessments are binding on
this court. [Citation.]" (Schneer v. Llaurado (2015) 242 Cal. App. 4th 1276, 1286-1287,
fn. omitted (Schneer).)5 In contrast, we review de novo, or independently, a juvenile
5 Schneer, supra, 242 Cal. App. 4th 1276, discussed the origin of the contrary
independent standard of review adopted in In re A.C. (2005) 130 Cal. App. 4th 854, 860,
concluding A.C.'s rule was based on In re Marriage of Fox (1986) 180 Cal. App. 3d 862,
which decision did not support such a rule. (Schneer, at pp. 1283-1287.) Schneer stated:
"[T]he notion an appellate court may independently reweigh the trial court's findings of
10
court's determination of jurisdictional facts based on undisputed evidence and its
interpretation of statutes. (Schneer, at pp. 1286, fn. 5, 1287.)
II
Subject Matter Jurisdiction Over A.C.'s and E.C.'s Cases
Mother contends the juvenile court erred by concluding it had subject matter
jurisdiction under the UCCJEA over A.C.'s and E.C.'s juvenile dependency cases. In
particular, she argues the court erred by not verifying and authenticating on the record
that its e-mails to Mexico authorities were, in fact, sent to the correct e-mail addresses
and appropriate judicial authorities in Mexico and that those e-mails were actually
received by those authorities. Mother argues that without such verification and
authentication, the record does not show that the Mexico courts affirmatively declined to
exercise home state jurisdiction over the cases under the UCCJEA based solely on their
failure to timely respond to the juvenile court's e-mails. Mother also contends the court
could not exercise subject matter jurisdiction under section 3421, subdivision (a)(2),
because there is no evidence showing that the children and at least one parent had
significant connections to California other than mere physical presence and that there is
jurisdictional facts runs counter to the fundamental principle that appellate courts do not
reweigh facts and generally must defer to the trial court's resolution of credibility and
conflicts in the evidence. [Citations.]" (Id. at pp. 1285-1286.) We agree with the
reasoning in Schneer and therefore apply the substantial evidence standard in this case in
reviewing the juvenile court's findings on jurisdictional facts to the extent they are based
on disputed or contested evidence. In any event, had we instead applied the In re A.C.
independent review rule, we nevertheless would have reached the same conclusions and
dispositions as set forth below.
11
substantial evidence available in California concerning the children's care, protection,
training, and personal relationships.
A
At the June 16, 2015 hearings, Agency raised the issue of the court's jurisdiction
under the UCCJEA based on Mother's report that she and the children had lived in
Mexico for the past nine years. Presumably recognizing Mexico was the children's home
state under the UCCJEA, Agency recommended that the court take temporary emergency
jurisdiction under the UCCJEA and then contact Mexico courts to determine whether
they were interested in exercising jurisdiction over the case before deciding the question
of its subject matter jurisdiction. The court stated it would send an e-mail to Mexico
authorities to determine whether or not they were willing to defer subject matter
jurisdiction to it.
At the July 15, 2015 hearings, the juvenile court, as discussed above, described on
the record its attempts to contact Mexico court authorities. It stated it had sent e-mails on
July 2, 2015, and on July 6, 2015, to two Mexico family court judges and had also made
several telephone calls in unsuccessful attempts to speak with them. The court gave
counsel for Agency and Mother copies of the contact information it used. The relevant
text of those e-mails is quoted in footnote 2 above. In particular, the court's e-mails
asked the Mexico court authorities whether they "decline to exercise jurisdiction over this
case in favor of California assuming jurisdiction[.]" Having not received a response by
its stated July 14, 2015 deadline, the court found it had complied with the UCCJEA by
giving notice to Mexico of the proceedings in these cases and of Mexico's ability to go
12
forward with its own proceedings in its jurisdiction and then took subject matter
jurisdiction over the cases in lieu of the Mexico courts taking jurisdiction.
B
The parties agree, and the record show, that Mexico was the children's home state
within the meaning of the UCCJEA. The parties also agree, and we concur, that the
juvenile court properly assumed temporary emergency jurisdiction over the children's
cases under section 3424. However, the parties disagree on whether the court erred by
finding Mexico, as their home state, declined to exercise its subject matter jurisdiction on
the ground that California was the more appropriate forum under section 3421,
subdivision (a)(2) or (a)(3), quoted above. Mother argues the court's failure to receive a
timely response from Mexico judicial authorities does not support the inference that
Mexico declined to exercise its jurisdiction on the ground that California is the more
appropriate forum. (§ 3421, subds. (a)(2), (a)(3).)
In particular, Mother argues the court erred because the record does not show it
verified and authenticated that its e-mails to Mexico authorities were, in fact, sent to the
correct e-mail addresses and appropriate judicial authorities in Mexico and that those e-
mails were actually received by those authorities.6 However, she did not raise those
6 Mother does not assert, nor could she successfully assert, that the juvenile court
erred by communicating with the Mexico courts by means of e-mail. Although section
3410, subdivision (a), does not specifically identify the means by which a California
juvenile court may "communicate" with a court in another state concerning a proceeding
arising under the UCCJEA, we presume that, given the widespread use of e-mail
communication for both personal and business purposes in today's society,
communication by means of e-mail, which is an electronic form of communication, is
13
issues or objections below and therefore forfeited or waived for purposes of appeal any
arguments that the court erred in its procedures. (Doers v. Golden Gate Bridge etc. Dist.
(1979) 23 Cal. 3d 180, 184, fn. 1 [" 'An appellate court will ordinarily not consider
procedural defects . . . where an objection could have been but was not presented to the
lower court by some appropriate method . . . . [I]t is unfair to the trial judge and to the
adverse party to take advantage of an error on appeal when it could easily have been
corrected at the trial.' [Citation.]"].) In this case, it would be unfair to both the juvenile
court and Agency for Mother to receive all of the court's contact information and
correspondence with Mexico judicial authorities at the July 15, 2015 hearing and then not
raise any objections or concerns that the e-mail addresses or judicial authorities were
incorrect or that there was no affirmative showing they received the e-mails at the time of
that hearing or at any of the many hearings thereafter through the court's February 14,
2017 order that was issued 19 months later. (Ibid.) If Mother had believed any of the
court's contact information was incorrect, she could, and should, have independently
ascertained the correct information and then informed the court of that information or, at
least, raised the issue of possible incorrect contact information during the July 15, 2015
hearings or thereafter. By not doing so, she has forfeited or waived any such procedural
errors by the court. To the extent Mother argues there can be no forfeiture or waiver of
those purported errors because they were substantive, and not procedural, errors, we
disagree. Mother does not cite any case or other authority showing that a juvenile court's
one acceptable means of communicating with a court of another state under the UCCJEA.
(§ 3410, subd. (a).)
14
subject matter jurisdiction under section 3421, subdivision (a)(2) or (a)(3), is dependent
on an affirmative showing on the record that the court verified and authenticated that its
contact information for Mexico or other foreign state judicial authorities was correct and
that those authorities did, in fact, receive its correspondence and, yet, did not respond.
Accordingly, we conclude the purported errors were of a procedural, and not substantive,
nature and were therefore subject to forfeiture or waiver for failure to timely raise any
objections below. (Doers, at p. 184, fn. 1.)
Furthermore, because Mother has not cited any case or other authority showing the
court had a duty under the UCCJEA or otherwise to state on the record that it had verified
and authenticated that its e-mails were sent to the correct e-mail addresses and to the
appropriate judicial authorities in Mexico or that those e-mails were actually received by
those authorities, she waived that argument or, at least, has not carried her burden on
appeal to show the court erred by not doing so. "Appellate briefs must provide argument
and legal authority for the positions taken." (Nelson v. Avondale HOA (2009) 172
Cal. App. 4th 857, 862.) "When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the point as
waived." (Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 784-785.) If an
argument in an appellate brief is supported by only an opinion or argument of appellant's
counsel without "citation to any recognized legal authority," that argument may be
deemed waived for failure to present supporting substantive legal analysis. (Kim v.
Sumitomo Bank (1993) 17 Cal. App. 4th 974, 979; see also People v. Stanley (1995) 10
Cal. 4th 764, 793; Niko v. Foreman (2006) 144 Cal. App. 4th 344, 368; MST Farms v. C.
15
G. 1464 (1988) 204 Cal. App. 3d 304, 306.) By not citing any legal authority showing the
court had the duties Mother asserts, she has forfeited or waived those arguments.
In any event, we nevertheless conclude the court properly verified and
authenticated its contact information for the Mexico judicial authorities. All intendments
and presumptions are made to support a trial court's judgments, orders, rulings, and other
actions where the record is silent, and it is the appellant's burden on appeal to show those
actions are erroneous. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564; Cahill v.
San Diego Gas & Elec. Co. (2011) 194 Cal. App. 4th 939, 956; Winograd v. American
Broadcasting Co. (1998) 68 Cal. App. 4th 624, 631-632.) Accordingly, although the
record in this case may not affirmatively show the court verified and authenticated that
the e-mail addresses and Mexico judicial authorities were correct, we must presume the
court properly acted because the record is silent on those issues. (Denham, at p. 564;
Cahill, at p. 954; Winograd, at pp. 631-632.) Likewise, we presume the court properly
inferred those authorities did, in fact, receive its e-mails because the record does not show
otherwise. As discussed above, the court stated on the record that it had sent two e-mails
to Mexico family court authorities and made several telephone calls in attempts to speak
with them and provided counsel with copies of the e-mails and its contact information.
The court also stated on the record that it had not received any response from those
authorities by the time of the deadline (i.e., July 14, 2015) set forth in its e-mails.
Because Mother has not cited, and we are unaware of, anything in the record
affirmatively showing the court did not verify or authenticate its contact information for
the Mexico judicial authorities or that those authorities did not receive its e-mails, we
16
conclude Mother has not carried her burden on appeal to show the court erred by not
verifying and authenticating on the record that contact information and their receipt of its
e-mails.
Furthermore, even if Mother had shown the court erred by not stating that
information on the record, that procedural error is subject to harmless error analysis. (In
re R.L. (2016) 4 Cal.App.5th 125, 143 [UCCJEA procedural error requires showing of
prejudice under People v. Watson (1956) 46 Cal. 2d 818 standard to warrant reversal]; In
re Cristian I. (2014) 224 Cal. App. 4th 1088, 1102-1103 [same]; In re M.M., supra, 220
Cal.App.4th at pp. 717-718 [same].) Mother has made no attempt to carry her burden on
appeal to show it is reasonably probable she would have obtained a more favorable result
had the court stated on the record its verification and authentication of the correctness of
its contact information and the Mexico judicial authorities it contacted. In particular,
Mother has not made any attempt on appeal to show the court used incorrect contact
information for the appropriate Mexico judicial authorities. Therefore, we conclude that
any such procedural error by the court does not require reversal of the instant orders.
(Watson, at p. 836; In re R.L., at p. 143; In re Cristian I., at pp. 1102-1103; In re M.M., at
pp. 717-718.)
C
To the extent Mother contends the record does not support the court's finding that
Mexico declined to exercise jurisdiction over the children's cases on the ground
California was the more appropriate forum, we conclude there is substantial evidence to
support the court's finding it may have jurisdiction under section 3421, subdivision (a)(2)
17
or (a)(3), because the Mexico judicial authorities' failure to timely respond to its e-mails
was tantamount to their declination to exercise jurisdiction over the children's cases. Our
recent opinion in In re M.M., supra, 240 Cal. App. 4th 703, is instructive. In that case,
Agency filed a dependency petition in the San Diego County Superior Court regarding a
child who had lived for less than six months in California, but had previously lived in
Japan, which presumably was the child's home state under the UCCJEA. (Id. at pp. 706,
711.) The juvenile court attempted to contact a family court in Japan to discuss whether
it would exercise subject matter jurisdiction over the case. (Id. at pp. 710, 714-715.)
However, Japan court representatives informed the juvenile court that it would be
inappropriate for one of its judges to discuss by telephone or e-mail the matter of
jurisdiction in a specific case. (Id. at p. 710.) The juvenile court also did not receive a
timely response from the Japan court to its detailed certified letter sent by express mail.
(Id. at p. 711.) Accordingly, the court stated it had exhausted its efforts to discuss the
jurisdiction issue with a Japan court, concluded the Japan court was not interested in
discussing that issue, and found it had jurisdiction under the UCCJEA.7 (Id. at pp. 709,
712.)
7 After the juvenile court made its finding it had subject matter jurisdiction under
the UCCJEA, it received a letter from a Japan judge responding to its letter. (In re M.M.,
supra, 240 Cal.App.4th at pp. 713-714.) The response letter stated that under the Japan
legal system a judge is not allowed to discuss issues concerning jurisdiction over an
individual case with a judge of another state. (Id. at p. 714.) At a subsequent hearing
regarding that letter, the juvenile court concluded it was satisfied with its original ruling
that it had subject matter jurisdiction under the UCCJEA. (Id. at pp. 713-714.)
18
On appeal, we noted that section 3421, subdivision (a)(2), was ambiguous
regarding how a court of a home state or other potential forum state may decline
jurisdiction. (In re M.M., supra, 240 Cal.App.4th at p. 716.) Rejecting a requirement
that the home state decline jurisdiction by an express order finding that California is a
more appropriate forum, we concluded "the home state can be deemed to have declined
jurisdiction when it refuses for whatever reason to commit one way or the other to protect
a child in a child custody proceeding or when, as in the instant case, it refuses to even
discuss the issue of jurisdiction with another state . . . ." (Ibid.) Alternatively stated,
"when 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, that 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.) Accordingly, based on the record in that case, we concluded the
juvenile court correctly found that the child's home state of Japan had declined
jurisdiction on the ground California was the more appropriate forum under section 3421,
subdivision (a)(2), that the child and at least one parent had significant connections to
California other than mere physical presence, and that substantial evidence was available
in California concerning the child's care, protection, training, and personal relationships.
(§ 3421, subd. (a)(2)(A), (B).) Therefore, we concluded the juvenile court had subject
matter jurisdiction over the case under the UCCJEA. (Ibid.)
19
We conclude our reasoning and holding in In re M.M., supra, 240 Cal. App. 4th
703, supports the juvenile court's finding that it had subject matter jurisdiction under
section 3421, subdivision (a)(2) or (a)(3), because the Mexico judicial authorities' failure
to respond to its e-mails was tantamount to their declination to exercise jurisdiction over
the children's cases. Similar to the juvenile court in In re M.M., the court here attempted
to discuss with a court of another state whether it would exercise jurisdiction over the
dependency cases. Although in In re M.M. the Japan court representatives affirmatively
indicated the court could not, or would not, discuss the issue of jurisdiction with the court
and the juvenile court in these cases apparently was unable to speak substantively with
Mexico court representatives, we do not believe that distinction requires a different result.
Accordingly, we conclude 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.
(§ 3421, subds. (a)(2), (a)(3); In re M.M., at pp. 716-717.) In re Gino C., supra, 224
Cal. App. 4th 959 and In re A.M., supra, 224 Cal. App. 4th 593, cited by Mother, are
factually and procedurally inapposite to these cases and do not persuade us to reach a
contrary conclusion.
D
Mother also asserts the court could not exercise subject matter jurisdiction under
section 3421, subdivision (a)(2), because there is no evidence showing that the children
and at least one parent had significant connections to California other than mere physical
presence and that there is substantial evidence available in California concerning the
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children's care, protection, training, and personal relationships. However, Mother fails to
acknowledge and dispute evidence in the record showing that Mother and the children
had significant connections to California and that there is substantial evidence in
California regarding the children's care, protection, training, and personal relationships.
(§ 3421, subd. (a)(2).)
Significant connections to California.
The record shows, and Mother apparently does not dispute, that she had significant
connections to California. She lived in California for most, if not all, of her life before
A.C. was born and then moved to Mexico when M.C. was deported. The record shows
she periodically returned to the United States even after she began residing in Mexico. In
particular, Mother apparently was visiting her mother (i.e., the children's maternal
grandmother) when the incident occurred that resulted in her April 2015 arrest in San
Luis Obispo.
The record also shows A.C. had significant connections to California. His
paternal grandfather, who apparently lived in or near Monterey, California, told Agency
that he had often provided daily care for A.C. and assisted with taking him to medical
appointments. Furthermore, although the record is silent, it can be reasonably inferred
that A.C. was in California with Mother in April 2015 when she visited A.C.'s maternal
grandmother because there is no evidence that M.C. or anyone else in Mexico provided
care for him.
The record also supports an inference that E.C. had significant connections to
California. Although the record does not show the paternal grandfather provided any
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daily care for E.C., it can be reasonably inferred that E.C. was in California with Mother
in April 2015 when she visited E.C.'s maternal grandmother because there is no evidence
that M.C. or anyone else in Mexico provided care for him. Furthermore, it could be
reasonably argued that through his relationship to A.C. as his brother, E.C., who had
lived with A.C. since his birth, indirectly has the same significant connections to
California as A.C. does. A similar argument could be made based on E.C.'s relationship
to Mother and her significant connections to California.
Therefore, the record supports the court's finding that Mother, A.C., and E.C. had
significant connections to California at the time the children's dependency petitions were
filed. (§ 3421, subd. (a)(2)(A).)
Substantial evidence regarding the children.
We further conclude there was substantial evidence in California regarding A.C.'s
and E.C.'s care, protection, training, and personal relationships at the time their
dependency petitions were filed. (§ 3421, subd. (a)(2)(B).) As discussed above, the
paternal grandfather, who apparently lived in or near Monterey, California, told Agency
that he had often provided daily care for A.C. and assisted with taking him to medical
appointments. Therefore, the paternal grandfather presumably could provide evidence
regarding A.C.'s care, protection, training, and personal relationships. Furthermore,
Agency cared for A.C. from May 21, 2015, until May 26, 2015, when the children's
dependency petitions were filed. Accordingly, Agency presumably also could provide
evidence regarding his care, protection, training, and personal relationships. (§ 3421,
subd. (a)(2)(B).)
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Likewise, there is substantial evidence in California regarding E.C.'s care,
protection, training, and personal relationships. Although the record is silent, it can be
reasonably inferred that E.C. was in California with Mother in April 2015 when she
visited E.C.'s maternal grandmother because there is no evidence that M.C. or anyone
else in Mexico provided care for him. Therefore, E.C.'s maternal grandmother may have
evidence regarding E.C.'s care, protection, training, and personal relationships.
Furthermore, Agency cared for E.C. from May 21, 2015, until May 26, 2015, when the
children's dependency petitions were filed. Accordingly, Agency presumably also could
provide evidence regarding his care, protection, training, and personal relationships.
(§ 3421, subd. (a)(2)(B).)
E
Based on the record in the children's cases, we conclude the juvenile court
properly found it had subject matter jurisdiction over their cases under section 3421,
subdivision (a)(2). Specifically, as discussed above, the record supports findings that
Mexico declined to exercise jurisdiction over their cases on the ground California was a
more appropriate forum, that Mother and the children had significant connections to
California other than mere physical presence at the time of the filing of the dependency
petitions, and there is substantial evidence regarding the children's care, protection,
training, and personal relationships at the time of the filing of the petitions. (§ 3421,
subd. (a)(2).)
In any event, assuming arguendo that the record does not support findings either
that Mother and the children had significant connections to California (§ 3421, subd.
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(a)(2)(A)) or that there is substantial evidence in California regarding the children's care,
protection, training, and personal relationships (§ 3421, subd. (a)(2)(B)), we nevertheless
conclude the juvenile court necessarily had subject matter jurisdiction under section
3421, subdivision (a)(3). The only substantive difference between the language of
section 3421, subdivision (a)(2), and section 3421, subdivision (a)(3), is the latter's
omission of the significant connections and substantial evidence of care requirements
stated in section 3421, subdivision (a)(2)(A) and (B).8 Based on the record, there is no
other state that possibly could exercise jurisdiction over the children's dependency cases
other than Mexico or California. Therefore, because, as we discussed above, Mexico
declined to exercise jurisdiction over the children's cases on the ground California was
the more appropriate forum, we conclude that the juvenile court had 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).
DISPOSITION
The orders are affirmed.
8 Under section 3421, subdivision (a)(3), a court has subject matter jurisdiction if:
"All courts having jurisdiction under paragraph (1) or (2) [of section 3421, subdivision
(a)] have declined 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."
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HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
25
Filed 7/21/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.C. et al., Persons Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND D071772
HUMAN SERVICES AGENCY,
Plaintiff and Respondent, (Super. Ct. No. J519194A, B)
v. ORDER CERTIFYING OPINION
FOR PUBLICATION
K.C.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed June 30, 2017, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
26
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
_________________________
MCCONNELL, P. J.
Copies to: All parties
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