Opinion
D070358
01-23-2017
In re A.G. et al., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. F.G., Defendant and Appellant.
Jamie A. Moran, 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 Roach, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ3515ABC) APPEAL from orders of the Superior Court of San Diego County, Sharon L. Kalemkiarian, Judge. Affirmed. Jamie A. Moran, 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 Roach, Deputy County Counsel, for Plaintiff and Respondent.
F.G. (Father) appeals orders of the juvenile court terminating parental rights to his sons A.G. and E.G. (collectively, the twins) under Welfare and Institutions Code section 366.26 and placing the twins for adoption. In a prior appeal in this case, we reversed the court's original orders terminating parental rights and placing the twins for adoption and remanded the matter to the court with directions to conduct a further hearing on the question of whether the court had subject matter jurisdiction over the case under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, Family Code § 3400 et seq.). (In re Angelo G. (Dec. 8, 2015, D067759) [nonpub. opn.].) On remand, the court conducted a further evidentiary hearing, concluded it had subject matter jurisdiction pursuant to section 3421, subdivision (a)(2), and issued a new order terminating parental rights and placing the twins for adoption. On appeal, Father contends the court erred by concluding that California had subject matter jurisdiction over this case. In particular, he argues the evidence shows that Mexico was the twins' home state on, or within six months before, February 7, 2012, when the San Diego County Health and Human Services Agency (Agency) filed its dependency petitions in this case and that no other statutory provisions gave the court subject matter jurisdiction over this case. For the reasons discussed below, we conclude there is substantial evidence to support the court's finding that it had subject matter jurisdiction and affirm the orders.
All further statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual and procedural background is based, in part, on our prior opinion in In re Angelo G., supra, D067759.
The twins were born in 2008. Maria M. (Mother) and Father are the twins' parents, were in a long-term relationship, lived together, and have two other children.
The other children are not at issue in this appeal.
In February 2012, Agency received a report that Mother accompanied a friend to the superior court in El Cajon while intoxicated and caring for the twins, was stumbling and falling down, and was unable to complete paperwork in the children's waiting room. One of the twins had bruises on his face. An Agency social worker went to Mother's apartment complex the following day and found the twins playing outside without adult supervision. On February 7, Agency filed section 300 juvenile dependency petitions on behalf of the twins.
In Agency's detention report, the social worker noted Mother told her that she had moved from Colorado to San Diego two months earlier. Father told the social worker that he, Mother, and the children lived in Colorado until October 2011, when he was deported to Mexico, that he was currently residing in Tijuana, Mexico, and that Mother and the children moved to California so that he could see the children. He initially stated that he and Mother alternated weeks with the children, but then stated there was no set visitation schedule and the visits occurred regularly and lasted "a week at a time." At the detention hearing, the juvenile court found the UCCJEA may apply, took emergency jurisdiction over the twins, and ordered them detained.
In Agency's jurisdiction and disposition report, the social worker stated Mother told her that the children lived in Colorado until November 2011, when she and the children temporarily lived with Father in Mexico before moving into a Spring Valley, California, apartment in December 2011. Mother denied the children ever had a permanent residence with Father in Mexico and stated that they had only visited him there. In contrast, Father stated that after he was deported in March 2011, he and the twins lived in Guadalajara, Mexico, from March 2011 through October 2011, after which he and the twins moved to Tijuana to be closer to Mother and the twins' older brother. He stated the twins continued to live with him in Mexico and were only visiting Mother for a dentist appointment on the day they were taken into protective custody. Mother stated she and the children had cookie parties and barbeques with other families in the neighborhood and attended church weekly. She and the children also enjoyed family outings to the park and McDonald's and seeing new places in San Diego.
On March 6, 2012, the court held a jurisdictional hearing to address, among other matters, application of the UCCJEA. After the court heard Mother's testimony, it ruled the UCCJEA did not apply. At subsequent hearings in March and April 2012, the court found it had jurisdiction over the twins under section 300, declared them dependents of the court, and ordered that they be placed in licensed foster homes.
On March 20, 2015, the court issued orders finding adoption to be the appropriate permanent plans for the twins and terminating Mother's and Father's parental rights. Mother and Father appealed those orders. On December 8, 2015, we issued our opinion in In re Angelo G., supra, D067759, concluding there were insufficient jurisdictional facts to support the juvenile court's finding it had subject matter jurisdiction under the UCCJEA, reversing its jurisdictional, dispositional, and subsequent findings and orders, and remanding the matter for a further hearing on UCCJEA subject matter jurisdiction. (Id. at p. 8.)
On remand, the court received an e-mail from Father's counsel conveying Father's responses to certain questions. Father stated his children were born in Colorado. They moved to central Mexico with him in February 2011 and to Tijuana in September 2011. He stated they had never lived in the United States during 2011 or 2012. They were in the United States with Mother only to get dental work performed when they were removed.
The court subsequently received Father's declaration in which he stated the twins and their older brother all lived with him in Mexico in 2011. The children were in the United States only on a short visit with Mother in order to get dental care because he could not enter the United States.
The court also received a declaration from Mother's counsel conveying Mother's responses to certain questions. Mother stated she moved to California in October 2011 after living in Colorado. At the time of her move, the twins and their older brother had already lived with Father in Mexico for about 14 months. They first lived in Guadalajara for about eight months and then moved to Tijuana. At the time the twins were taken into protective custody, they were living in Tijuana but staying with Mother for a couple of days. Since she moved to California, she saw her children "[a]t times every other weekend or periodically." None of her children had any medical appointments in California.
In an Agency addendum report, a social worker reported information from conversations she had with Mother and Father about where the twins lived in 2011 and 2012. Mother stated that when she left Colorado, she drove with her children to New Mexico and left items at her parents' home there before moving to San Diego. Mother stated the children would alternate week days and weekends with Father and her. Father lived in Tijuana and the children would stay with him several days. In contrast, Father told the social worker that after he was deported from Colorado in March 2011, Mother, her father, and the children visited him at the border and he took the twins by bus to Guadalajara to live with him. They lived there for one year before moving to Tijuana. The twins were with Mother in San Diego only when they had dental or medical appointments because they had medical coverage there. He and Mother did not have any set visitation schedule for the children.
In March 2016, the court held a contested UCCJEA hearing during which it considered Agency's addendum report and the declarations described above. It also heard testimony from Mother and Father. Mother testified that the twins' older brother attended Mt. Vernon Elementary School in California from November 30, 2011, through February 3, 2012. She initially stated that during those two months he resided with her and also went back and forth to Mexico with Father. Later, she testified that the twins' older brother resided with her and Father in Tijuana. Mother confirmed the twins were born in Colorado. She stated the three children went with Father to live in Guadalajara with a paternal aunt while she went back to Colorado. Before 2011, Father and the children moved to Tijuana where they lived with Father's cousin and his aunt. She stated Father and the twins lived in Tijuana during all of 2011. In 2011, she lived by herself in Lemon Grove and the three children would go back and forth with her every once in a while. They would stay in her Lemon Grove [sic] apartment at which they had air mattresses and a couch that served as beds. They also had clothing in her apartment. When the twins stayed with her, they would stay from two to four days.
The court then questioned Mother. She could not recollect that Father was deported in March 2011. After Father got deported, she took the twins to her father's house in New Mexico where they stayed about one week before she and the twins crossed the border to Tijuana. The twins stayed with Father and she returned to Colorado. She stated that border crossing occurred before March 2011. She moved to California in October 2011. Thereafter, the twins would visit her in San Diego for a couple of days or a weekend and then she would drive them back to Tijuana. Beginning in or about November 2011, the twins' older brother attended school every day at Mt. Vernon Elementary School. The twins sometimes stayed with her on weekends, but at times they stayed with her during the week when their older brother was in school. At the time of the twins' removal, they were visiting her. They had arrived the previous evening. When the twins visited her, they would play with the other children in the apartment complex and do arts and crafts with them. She was certain she moved into her Spring Valley apartment in October 2011. In December 2011, all three children were with her when law enforcement came to her home in response to calls alleging she had drug users in her home. In January 2012, the children were in her care when law enforcement arrived at her home. Mother admitted she had an interlock device on her car from a violation in Colorado. Mother was asked about the statements reported by an Agency social worker that Father had made about all three children living in Colorado until October 2011 when he was deported and then they moved to California. She stated those statements reportedly made by Father were not accurate. On cross-examination by her counsel, Mother stated the three children lived with Father in Guadalajara for more than one year.
The court asked questions of Father, who testified by telephone under oath and through an interpreter. Father stated he never told a social worker that Mother moved from Colorado to California with the children. He was deported to Mexico in February or March 2011, waited for two weeks in Juarez, Mexico, for Mother and her father to bring all three children to him, and then went with the children to live in Guadalajara. In September 2011, he and the children moved from Guadalajara to Tijuana. He moved to Tijuana because he liked it and so the children could go to school in the United States and play with his nephews. He allowed Mother to take all three children to the United States because she told him they had Medi-Cal and the twins had a dentist appointment. He denied he told a social worker in 2012 that after October 2011 he and Mother would alternate weeks with the children or that the children visited with him regularly for a week at a time. He stated the children were with him in Tijuana.
After hearing arguments of counsel and considering the evidence and relevant case law, the court issued its ruling on the UCCJEA subject matter jurisdiction issue. The court first found that California was not the twins' home state as of February 2012. However, it also found Mexico was not their home state because they did not live there during the six-month period preceding the filing of the dependency petitions. Rather, after August 2011, the twins lived in both California and Mexico pursuant to their parent's cooperative schedule sharing the twins. Although neither California nor Mexico was the twins' home state, the court concluded it nevertheless had subject matter jurisdiction over their cases under section 3412, subdivision (a)(2). In support of that conclusion, it found Mother and the twins had significant connections to California and there was substantial evidence in California regarding the twins' care, protection, training, and personal relationships. Furthermore, the court had discussed their cases, through an interpreter, with a judge of a Mexican family court who did not indicate Mexico would ask to take jurisdiction today or would have taken jurisdiction in 2012. That judge explained a Mexican court cannot take jurisdiction of a case over children unless a parent or the DIF files a petition. However, although the DIF was aware of the instant California court cases, neither the DIF nor Father requested that the Mexican court take jurisdiction over the twins. Concluding it had subject matter jurisdiction over the twins under the UCCJEA, the court set a post-permanency hearing date for the twins' cases. Father timely filed a notice of appeal.
According to Agency, DIF is an acronym for Desarrollo Integral De la Familia, the social services agency in Mexico that is equivalent to Agency in California.
On October 21, 2016, E.G.'s counsel filed a letter in place of a formal brief in which she joined in Agency's arguments and positions in this appeal.
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.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.)
"(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)."
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).) In contrast, we review de novo, or independently, a juvenile court's determination of jurisdictional facts based on undisputed evidence and its interpretation of statutes. (Schneer, at pp. 1286, fn. 5, 1287.)
In In re Angelo G., we stated that we independently reweigh the jurisdictional facts, citing In re A.C. (2005) 130 Cal.App.4th 854 at page 860. (In re Angelo G., supra, D067759, at p. 3.) However, after we issued our opinion in In re Angelo G., the decision in Schneer, supra, 242 Cal.App.4th 1276, quoted above, was issued. Schneer discussed the origin of the In re A.C. rule, concluding it 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 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 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 disposition as set forth below.
II
Subject Matter Jurisdiction Over the Twins' Cases
Father contends the juvenile court erred by concluding it had subject matter jurisdiction over the twins' cases. In particular, he argues the evidence shows that Mexico was the twins' home state on, or within six months before, February 7, 2012, when Agency filed its dependency petitions regarding the twins and that no other statutory provisions gave the court subject matter jurisdiction over their cases.
A
No home state for the twins
As discussed above, the juvenile court found that neither California nor Mexico was the twins' home state, reasoning that from about October or November 2011 through February 7, 2012, when the dependency petitions were filed, the twins lived with Mother in California at times and with Father in Mexico at times pursuant to their cooperative schedule sharing the twins. We conclude there is substantial evidence to support that finding. In Agency's detention report, the social worker reported that Father told her that after he was deported to Mexico, Mother and the children moved to California (presumably in or about October 2011) so that he could see the children. He initially stated that he and Mother alternated weeks with the children, but then stated there was no set visitation schedule and the visits occurred regularly and lasted "a week at a time." In Agency's jurisdiction and disposition report, the social worker stated Mother told her the children lived in Colorado until November 2011, before moving into a Spring Valley apartment in December 2011. Mother denied the children ever had a permanent residence with Father in Mexico and that they had only visited him there. At the hearing after remand of this case, Mother testified that she moved to California in October 2011. Thereafter, the twins would visit her in San Diego for a couple of days or a weekend and then she would drive them back to Tijuana. The twins sometimes stayed with her on weekends, but at times they stayed with her during the week when their older brother was in school. Other evidence showed Mother and the twins attended church on Wednesdays and enjoyed dinners, movies, and going to the park. Mother and the twins had cookie parties and barbeques with other families in the neighborhood. The twins had clothing, bicycles, and wagons at Mother's home. Agency reports also showed Mother was often seen caring for the twins in California. The manager of Mother's apartment complex reported seeing the twins roaming the complex unsupervised late at night. On December 3, 2011, law enforcement received a call reporting that Mother's children were asking her if she was going to buy food. On January 19, 2012, law enforcement received a call alleging Mother was drunk and there were no sober adults to care for her children. On February 2, Mother was seen with the twins at the El Cajon courthouse. On February 3, a social worker saw the twins inadequately supervised at Mother's apartment complex.
The above evidence provides substantial support for the court's finding that the twins lived with Mother in California at least part of the time from November 2011 through February 7, 2012, when the dependency petitions were filed and therefore Mexico was not the twins' home state. (§ 3402, subd. (g).) Section 3402, subdivision (g), defines a child's "home state" for UCCJEA purposes as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding." Because it found the children lived with Mother in California at least part of the time during the six-month period before Agency's February 7, 2012, dependency petitions, the court could conclude Mexico was not the twins' home state under the UCCJEA. Furthermore, based on Father's statements to social workers and hearing testimony, there is substantial evidence to support the court's finding that California also was not the twins' home state. (§ 3402, subd. (g).) The court could conclude the evidence showed the twins lived with Father in Mexico at least part of the time during that six-month period and did not live in California for six months prior to the dependency petitions. (§ 3402, subd. (g).) Absent a home state for twins, the court properly found neither California nor Mexico had subject matter jurisdiction over the twins' cases under section 3421, subdivision (a)(1). To the extent Father cites other evidence that would have supported a contrary finding (e.g., that Mexico was the twins' home state on the date the dependency petitions were filed), he either misconstrues and/or misapplies the applicable substantial evidence standard of review. (Schneer, supra, 242 Cal.App.4th at pp. 1286-1287.)
B
Extended home state doctrine
Father nevertheless argues that Mexico was the twins' home state under the alternative "extended home state" doctrine. Assuming arguendo that doctrine applies to the facts in this case and supports a finding that Mexico was the twins' home state, we nevertheless conclude, as discussed below, the court had subject matter jurisdiction over the twins' cases under section 3421, subdivision (a)(2), because Mexico declined jurisdiction.
The extended home state doctrine is based on language in section 3421, subdivision (a)(1), which states: "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." (Italics added.) Schneer described the two alternative bases for finding "home state" jurisdiction under section 3421, subdivision (a)(1), stating:
"Read together, sections 3402 and 3421 provide two bases for home state jurisdiction. First, a California court has jurisdiction to make an initial determination of child custody if California is the child's home state on the date the proceeding is commenced (§ 3421, subd. (a)(1)), meaning the 'child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding' (§ 3402, subd. (g)). Second, a California court has jurisdiction if California was the child's 'home state . . . within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state.' (§ 3421, subd. (a)(1).)" (Schneer, supra, 242 Cal.App.4th at pp. 1288-1289.)
Citing Schneer, Father argues that because the court found the twins lived with him in Mexico for at least six consecutive months from about March 2011 through September 2011, the twins' home state, as of September 2011, was Mexico under section 3402, subdivision (g)'s definition. September 2011 was within six months before the filing of the dependency petitions on February 7, 2012. (§ 3421, subd. (a)(1).) Father also notes the undisputed evidence shows that he continued to live in Mexico thereafter while the twins were absent from Mexico (e.g., either lived in or visited California). Therefore, under Schneer and the italicized language quoted above from section 3421, subdivision (a)(1), Father argues that Mexico was the twins' home state as of Agency's February 7, 2012, dependency petitions. However, we need not decide whether Mexico was the twins' home state under the extended home state doctrine, because, even if it was, the court properly found Mexico declined jurisdiction over the twins' cases and therefore, as we conclude below, the court had subject matter jurisdiction under section 3421, subdivision (a)(2).
C
Subject matter jurisdiction under section 3421 , subdivision (a)(2)
We conclude there is substantial evidence to support the juvenile court's finding that it had subject matter jurisdiction over the twins' cases under section 3421, subdivision (a)(2), based on its alternative underlying findings that neither California nor Mexico was the twins' home state or, if Mexico was their home state, the Mexican court had declined to exercise jurisdiction and its additional findings that Mother and the twins had significant connections to California and there was substantial evidence available in California concerning the twins' care, protection, training, and personal relationships. As quoted above, section 3421, subdivision (a)(2), provides for subject matter jurisdiction by a court if:
"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."
Under that subdivision, a court may have jurisdiction to make a child custody determination if a court of another state does not have jurisdiction under section 3421, subdivision (a)(1), because the child does not have a home state. (§ 3421, subd. (a)(2).) As discussed above, the court in this case found that neither California nor Mexico was the twins' home state and we concluded substantial evidence supported that finding. Therefore, the first prerequisite for jurisdiction under section 3421, subdivision (a)(2), was met.
Alternatively, a court may have jurisdiction to make a child custody determination if a court of the child's home state has declined to exercise jurisdiction on the ground that California is the more appropriate forum under section 3427 or 3428. (§ 3421, subd. (a)(2).) The court in this case implicitly, if not expressly, found Mexico declined jurisdiction within the meaning of section 3421, subdivision (a)(2). In issuing its findings, the court described its communications with a Mexican family court judge, stating:
"I did speak with a judge in Mexico this morning, Josephina Magana Castillo, who was in the third family law department. . . . [¶] . . . [¶]Accordingly, the court found it had subject matter jurisdiction under section 3421, subdivision (a)(2).
"[W]hile it is impossible for a Mexican judge to tell me what would have happened in 2012, clearly to this court, Judge Josephine Magana Castillo did not indicate that Mexico would be asking to take jurisdiction today or that they [sic] even would have taken jurisdiction in 2012.
"I might also add for the appellate court's information, that she very plainly stated to this court, my understanding, which is this: That the Mexican court cannot take jurisdiction of a case over children, unless a parent or DIF asks them [sic] to do it.
"So in this circumstance, DIF was aware of the family. Once San Diego started its proceedings, DIF did not request, to our knowledge, that the Mexican court take jurisdiction. Neither had [F]ather made that request. And essentially what Judge Josephina Magana Castillo said to me is that unless DIF or the [F]ather had initiated proceedings in 2012, Mexico would decline to take jurisdiction simply on that reason alone. Because it has the Court there, the judge has no authority to commence a proceeding."
We conclude there is substantial evidence to support the court's finding it may have jurisdiction under section 3421, subdivision (a)(2), because the Mexican court declined to exercise jurisdiction over the twins' 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, Japanese court representatives informed the juvenile court that it would be inappropriate for one of its judges to discuss by telephone or email the matter of jurisdiction in a specific case. (Id. at p. 710.) The juvenile court also did not receive a timely response from the Japanese 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 Japanese court, concluded the Japanese court was not interested in discussing that issue, and found it had jurisdiction under the UCCJEA. (Id. at pp. 709, 712.)
After the juvenile court made its finding it had subject matter jurisdiction under the UCCJEA, it received a letter from a Japanese 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 Japanese 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.)
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 cases under the UCCJEA. (Ibid.)
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). In both cases, the juvenile court attempted to discuss with a court of another state whether it would exercise jurisdiction over the case. Unlike the court in In re M.M., the court in the instant cases was, in fact, able to discuss the issue of jurisdiction with the court of the other state (i.e., the Mexican court) and learned that it could not exercise jurisdiction unless either the DIF or a parent files a petition.
By discussing on the record its conversation with the Mexican family court judge, the juvenile court, in effect, took judicial notice of that judge's advice regarding Mexican law pursuant to Evidence Code sections 452, subdivision (f), and 454, subdivisions (a) and (b). To the extent that advice was not in writing (§ 454, subd. (b)) or Father did not have a reasonable opportunity to "meet such information before" the court took judicial notice (§ 455, subd. (b)), Father did not object to that judicially noticed information and, in any event, any procedural or other error in taking judicial notice was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Furthermore, Father did not object to, or correct any error in, the juvenile court's statement on the record that neither the DIF nor Father had requested that the Mexican court take jurisdiction after Agency filed the instant petitions. By not objecting to, or correcting any error in, the court's statement, Father implicitly conceded, and forfeited any challenge to, the truth of its statement. Also, he has not cited to anything in the record showing either he or the DIF filed petitions in the Mexican court or that the Mexican court has otherwise exercised jurisdiction over the twins.
Evidence Code section 452, subdivision (f), provides that a court may take judicial notice of "[t]he law . . . of foreign nations and public entities in foreign nations." Evidence Code section 454 provides: "(a) In determining the propriety of taking judicial notice of a matter, or the tenor thereof: [¶] (1) Any source of pertinent information, including the advice of persons learned in the subject matter, may be consulted or used, whether or not furnished by a party. [¶] . . . [¶] (b) Where the subject of judicial notice is the law . . . of nations, a foreign nation, or a public entity in a foreign nation and the court resorts to the advice of persons learned in the subject matter, such advice, if not received in open court, shall be in writing."
Evidence Code section 455, subdivision (b), provides: "If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken." --------
Because neither the DIF nor Father had filed petitions (whether in 2012 or subsequently thereto), the juvenile court concluded the Mexican court, in effect, declined to exercise jurisdiction under the UCCJEA, thereby allowing it to exercise subject matter jurisdiction under section 3421, subdivision (a)(2). Based on our review of the record, we conclude there is substantial evidence to support the court's finding that the Mexican court declined to exercise jurisdiction within the meaning of section 3421, subdivision (a)(2). Contrary to Father's assertion, the Mexican court was not required to issue an order or take other action expressly finding that California was a more appropriate forum under section 3427 or 3428. Rather, under In re M.M., the court could deem the Mexican court to have made such a finding based on its discussion with that court, which supported an inference that the Mexican court would not have exercised jurisdiction in 2012 absent a petition by the DIF or Father. The juvenile court can deem the court of another state to have declined to exercise jurisdiction "when it refuses for whatever reason to commit one way or the other to protect a child in a child custody proceeding." (In re M.M., supra, 240 Cal.App.4th at p. 716.) Absent any evidence showing either the DIF or Father filed petitions in a Mexican court, we conclude the juvenile court properly found that the Mexican court declined to exercise jurisdiction over the twins and that it therefore had subject matter jurisdiction over their cases. (§ 3421, subd. (a)(2); In re M.M., supra, at p. 716.)
Significant connection
For a court to have subject matter jurisdiction under section 3421, subdivision (a)(2), the child and at least one parent must have a significant connection with California. That significant connection must exist as of the time the jurisdictional determination is made. (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 510.) Nevertheless, subject matter jurisdiction must exist as of the time the child custody proceeding begins (e.g., on filing of a dependency petition). (In re A.M., supra, 224 Cal.App.4th at p. 598.) Accordingly, for purposes of subject matter jurisdiction under the UCCJEA, we review the record for evidence to support a court's finding the significant connection requirement was met at the time the dependency petition was filed.
Here, there is substantial evidence to support the juvenile court's finding that Mother and the twins had the required significant connections with California. As discussed above, the twins were seen, at least occasionally, by others at Mother's Spring Valley apartment complex since November 2011. The apartment complex manager saw the twins there, as did law enforcement officers. The twins had clothing and beds at Mother's apartment. The twins had dental appointments in California. The twins played with other children in the apartment complex and did arts and crafts with them. Mother and the twins had cookie parties and barbeques with families in the neighborhood, went to church weekly, and went to dinners and movies together. The twins also presumably had relationships with their older brother who attended Mt. Vernon Elementary School in California from November 30, 2011, through February 3, 2012. On February 2, the twins were seen with Mother at the El Cajon branch of the San Diego County Superior Court. The above evidence is sufficient to support the court's finding that the twins had significant connections with California at the time the dependency petitions were filed.
Also, undisputed evidence shows Mother moved from Colorado to San Diego in October 2011, where she rented the Spring Valley apartment for about two months prior to the filing of the February 7, 2012, dependency petitions. She also applied for a restaurant job in California. Accordingly, there is substantial evidence to support the court's finding that both Mother and the twins had significant connections with California at the time the dependency petitions were filed. (§ 3421, subd. (a)(2)(A).)
Substantial evidence
For a court to have subject matter jurisdiction under section 3421, subdivision (a)(2), substantial evidence also must be available in California concerning the child's care, protection, training, and personal relationships. Here, there is substantial evidence to support the juvenile court's finding that that substantial evidence requirement was met. The apartment complex manager, law enforcement, and an Agency social worker observed how Mother and others cared, whether adequately or not, for the twins while in California and how they were protected and trained. The twins had personal relationships with children at the apartment complex and other neighbors with whom the twins played and socialized. The twins also presumably had personal relationships with their older brother who attended school in California, as well as with attendees of the church services that they attended weekly with Mother. Therefore, substantial evidence supports the court's finding that substantial evidence was available in California concerning the twins' care, protection, training, and personal relationships at the time the dependency petitions were filed. (§ 3421, subd. (a)(2)(B).)
Because there is substantial evidence to support the court's finding that all of the requirements of section 3421, subdivision (a)(2), were met, the court properly concluded it had subject matter jurisdiction over the twins' cases under the UCCJEA.
DISPOSITION
The orders are affirmed.
/s/_________
O'ROURKE, Acting P. J. WE CONCUR: /s/_________
AARON, J. /s/_________
IRION, J.