Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J517364, Laura J. Birkmeyer, Judge.
McCONNELL, P. J.
The child in this dependency action was born in California to parents who live in California. We hold that the juvenile court abused its discretion by declining to exercise jurisdiction over the matter and ruling that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.) Wisconsin rather than California is the proper forum for the proceeding, based on the mother's previous history with Child Protective Services (CPS) in that state. We reverse the jurisdictional order with directions.
Statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Patrick D. and S.R. are married, and they moved from Wisconsin to San Diego when she was pregnant with Jaden. He was born in October 2008. S.R. has five older children, four of whom were dependents of the court in Wisconsin. S.R. did not reunify with the children. She allegedly has mental health and anger management problems, she was previously involved in a violent relationship with the father of her older children, and she abused and neglected them. Three of her older children were placed with relatives, and one case remained pending in Wisconsin.
On January 12, 2009, the San Diego County Health and Human Services Agency (the Agency) took custody of Jaden. On January 14 it filed a petition on his behalf under Welfare and Institutions Code section 300, subdivision (b), alleging he was exposed to an incident of physical violence between the parents. The record shows Patrick had gone to a Ralph's grocery store to buy food for dinner, taking a cell phone with him. S.R. tried to call him to tell him the baby needed water, but he did not answer his phone. S.R. was upset, and she took the baby to Ralph's. After leaving the store, the parents argued and S.R. struck Patrick's face causing two minor cuts. Police arrested her. The petition also alleged facts pertaining to S.R.'s history with CPS in Wisconsin.
The parents attended all hearings. At the January 15 detention hearing, the court appointed counsel for the parents and Jaden. The parents asked that Jaden be placed with the maternal grandmother, who also lives here. The court ordered that he be placed in licensed foster care, or in an approved home of a relative with acquiescence from his attorney. The parents asked for voluntary services, and the court authorized liberal supervised visitation. The court cautioned the parents that because Jaden was under the age of three years, they may have only six months to participate in court-ordered services.
At the close of the hearing, the court advised the parties it believed the UCCJEA may apply because the parents previously lived in Wisconsin and had been in San Diego for a relatively short time. The court stated that out of an "abundance of caution" it intended to contact the court in Wisconsin so "we can just determine whether there might be a UCCJEA issue." (Italics added.)
On January 30, the maternal grandmother "completed her live scan fingerprinting." She lived separately from the parents, and S.R. had advised the Agency that her mother had no criminal or CPS history.
At the February 3 jurisdiction and disposition hearing, the court continued the matter because it had not yet spoken to a Judge Foley in Wisconsin about the potential UCCJEA matter. The Agency's report for that hearing states: "The parents are currently being cooperative with the Agency. The parents are enrolled in their services and are motivated to progress in them. The mother and father have demonstrated a positive bond between them and the minor, Jaden. Although the parents' family reside in Wisconsin[,] the mother does have the maternal grandmother in San Diego for support." Both parents told the social worker they were committed to Jaden.
At the February 11 continued hearing, the court advised the parties it had had "multiple conversations" with Judge Foley in Wisconsin. The court and Judge Foley decided that not only was there indeed a UCCJEA issue, and "[d]espite facts that we [California] may have some home state jurisdiction," "jurisdiction most appropriately lies in Wisconsin based on the significant connection there and the open pending case of the family."
S.R. and Patrick objected to the court transferring the matter to Wisconsin. The court responded, "I believe we have complied to the letter of the law with the [UCCJEA]. This decision was not made lightly, let me tell you, and it was after extensive review of the facts and discussion of the pending matters in Wisconsin."
At the February 11 hearing, the court continued the jurisdiction and disposition hearing to February 26. The Agency asked, "[Y]our [H]onor, in the interim, if the Wisconsin--the social worker services comes to take Jaden, I'm assuming that we don't have any ability to say no; is that correct?" The court responded, "That's my understanding, yes." S.R.'s attorney asked "that notice be provided to my client and to myself if that's what's going to happen." (Italics added.) The court responded, "Okay." Patrick also asked for notice. The court responded, "Yes. Yes." The parents had been allowed only two visits with the baby and they asked for additional visitation. The court asked the Agency to "make efforts to accommodate visits."
The Agency concedes in its respondent's brief that "[i]n light of California being the child's home state and a petition having been filed in the San Diego court, this broad statement was not entirely correct." At oral argument, the Agency conceded the statement was entirely incorrect.
The February 26 hearing began at 8:30 a.m. The Agency requested that the court dismiss the dependency petition because at 8:45 that morning a Wisconsin social worker would be flying out of San Diego with Jaden, and a hearing was scheduled in Wisconsin for the following morning. In other words, the plane was on the tarmac with the baby in it and the parents received about 15 minutes "notice" under the court's February 11 ruling.
Patrick objected to dismissal of the petition, and he asked for a contested evidentiary hearing "to see if this Court should take jurisdiction." He argued jurisdiction was proper here because Jaden was born here and the parents both live here, which makes California and not Wisconsin the convenient forum. His attorney argued, "I believe that I can put on evidence to this Court--and I want to have that opportunity to put on that evidence--showing that this Court would be the right forum for this child."
S.R. joined in Patrick's arguments, and requested an evidentiary hearing. Her attorney stated Jaden has "lived here for his entire life. The parents have maintained their residence here. They are established here. And this would be the convenient forum to litigate jurisdiction and have the dependency case. I believe it would be... not only an inconvenience but a disadvantage to the parents to uproot their lives and now have to move back to Wisconsin."
The Agency argued the parents lacked standing on the UCCJEA issue, because it was up to the court to decide "where the most convenient forum will be." Jaden's attorney stated, "I am not familiar with the UCCJEA to the extent where I feel that I can weigh in on this particular argument."
The court advised Patrick's counsel that it had not anticipated his making a request for an evidentiary hearing, and it intended to research UCCJEA provisions. Counsel reiterated that "the parents are due an evidentiary hearing for them to actually take the stand and present their case why they believe that the case should remain here in California."
At the continued hearing on March 6, Patrick again argued the parents had a right to an evidentiary hearing. His attorney said, "what I'm really asking for is an opportunity to be heard for these parents to present evidence to this court why we believe that this court is the right court to have jurisdiction of the minor." He added, "if there is ever going to be an opportunity to reunify with the parents--that that's why we're here, to reunify families--it's going to be done here in California."
S.R. joined in Patrick's arguments, and added that "the only home that Jaden has known has been here in San Diego. He has... no contacts or ties with the state of Wisconsin."
The Agency argued that if the parents wanted an opportunity to be heard on the inconvenient forum issue, they would have to go through the Wisconsin court since the case had been transferred. The Agency argued the parents were not surprised by the baby's removal to Wisconsin because at "the detention hearing, it was brought to the court's attention that there were proceedings taking place in Wisconsin," and they did not seek a stay. Patrick's attorney argued the parents were not required to seek a stay because on February 11, the court agreed the Agency would notify them if it intended to remove Jaden to Wisconsin. Surprisingly, Jaden's attorney agreed with his removal to Wisconsin.
The court continued the matter to March 13 so it could review the reporter's transcripts from the February 3 and 11 hearings. On March 13, the court denied the parents' request for an evidentiary hearing on the UCCJEA issue on the ground it lacked jurisdiction since Jaden had been moved to Wisconsin. The court advised the parties they could request an evidentiary hearing in Wisconsin. The court dismissed the dependency petition and the parents' appeals followed.
At this hearing the court incorrectly stated the petition alleged the parents had physically abused Jaden.
DISCUSSION
I
Overview of the UCCJEA
A
Purposes
The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions. (In re C.T. (2002) 100 Cal.App.4th 101, 106.) A dependency proceeding is a " 'child custody proceeding' " subject to the UCCJEA. (§ 3402, subd. (d); In re Angel L. (2008) 159 Cal.App.4th 1127, 1136.) "The purposes of the UCCJEA in the context of dependency proceedings include avoiding jurisdictional competition and conflict, promoting interstate cooperation, litigating custody where child and family have closest connections, avoiding relitigation of another state's custody decisions and promoting exchange of information and other mutual assistance between courts of other states." (In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348.)
Wisconsin also adopted the UCCJEA. (Wis. Stats. § 822.01 et seq.)
B
Home State Jurisdiction
"Subject matter jurisdiction either exists or does not exist at the time the action is commenced and cannot be conferred by stipulation, consent, waiver or estoppel." (In re Jaheim B., supra, 169 Cal.App.4th at p. 1348.) Under section 3421, California may assume jurisdiction to make an initial child custody determination only under certain circumstances, including if California is the child's "home state." (§ 3421, subd. (a)(1).) In the case of a child less than six months old, the term " 'home state' " "means the state in which the child lived from birth" with a parent or parents. (§ 3402, subd. (g).) The UCCJEA gives preference to "home state" jurisdiction. (Zenide v. Superior Court (1994) 22 Cal.App.4th 1287, 1294 [discussing UCCJEA's precursor, the Uniform Child Custody Jurisdiction Act [UCCJA], Civil Code, former § 5150 et seq.].)
C
Inconvenient Forum
Under section 3427, subdivision (a), a court having "home state" jurisdiction under the UCCJEA has discretion to "decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." Subdivision (b) of section 3427 provides: "Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
"(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
"(2) The length of time the child has resided outside this state.
"(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
"(4) The degree of financial hardship to the parties in litigating in one forum over the other.
"(5) Any agreement of the parties as to which state should assume jurisdiction.
"(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
"(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
"(8) The familiarity of the court of each state with the facts and issues in the pending litigation."
D
Communication Between Courts
A California court may communicate with a court in another state concerning a proceeding under the UCCJEA. (§ 3410, subd. (a).) "The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made." (Id., subd. (b).)
II
Due Process
The parents contend the court violated their constitutional due process rights by depriving them of an evidentiary hearing on the issue of forum non conveniens under the UCCJEA. The parents ask that we remand the matter for an evidentiary hearing.
"Determining if the trial court adhered to constitutional principle is solely a question of law" subject to our independent review. (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 610.) "The due process clauses of the federal and state Constitutions provide that a person may not be deprived of life, liberty, or property without due process of law. (Cal. Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend., § 1.)" (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1174-1175.) " '[D]ue process is the opportunity to be heard at a meaningful time and in a meaningful manner.' " (Los Angeles Police Protective League v. City of Los Angeles (2002) 102 Cal.App.4th 85, 91.)
" '[U]nlike some legal rules,'... due process 'is not a technical conception with a fixed content unrelated to time, place and circumstances.' [Citation.] Rather, the phrase expresses the requirement of 'fundamental fairness,' a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what 'fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake." (Lassiter v. Department of Social Services of Durham County, N.C. (1981) 452 U.S. 18, 24.)
"A parent's interest in the companionship, care, custody and management of his [or her] children is a compelling one, ranked among the most basic of civil rights." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood." (In re Carmaleta B. (1978) 21 Cal.3d 482, 489.) "The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment." (Stanley v. Illinois (1972) 405 U.S. 645, 651.) "It is axiomatic that due process guarantees apply to dependency proceedings." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756.)
The Agency asserts the UCCJEA does not require an evidentiary hearing in every instance. In its brief, the Agency submits the court satisfied the parents' rights by allowing them to informally present facts and argument. At oral argument, however, the Agency conceded that under the circumstances here, the court should have allowed the parents an evidentiary hearing.
We agree that under constitutional principles the parents should have been given adequate notice that their son was going to be removed, rather than 15 minutes' "notice," and a meaningful opportunity to be heard. By not exercising "home state" jurisdiction and allowing Wisconsin to step in, the court likely made visitation impossible or unduly difficult, and the lack of visitation then thwarts reunification prospects. "The reunification phase of dependency proceedings is a critical aspect of the entire dependency system." (Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at p. 755.) That the parents have appointed counsel in Wisconsin is no substitute for visitation.
As discussed below, however, undisputed facts show the court improperly declined to exercise jurisdiction here. Thus, an evidentiary hearing on the forum non conveniens issue is unnecessary. Further, we are not required to determine whether the UCCJEA requires an evidentiary hearing in all dependency jurisdictional matters.
III
Abuse of Discretion
Jaden was born here, his parents live here, and he lived here continuously with his parents until the Agency took him into protective custody. He did not know his half-siblings or other relatives who live in Wisconsin, and there was never any dependency proceeding pertaining to him in Wisconsin. He had absolutely no connection to Wisconsin, and there was no "jurisdictional competition and conflict" between California and Wisconsin. (In re Jaheim B., supra, 169 Cal.App.4th 1343, 1348.) Further, Patrick was never involved in any dependency proceeding in Wisconsin.
Under these circumstances, the court could not reasonably find the UCCJEA applicable. Thus, the court's refusal to accept jurisdiction of the matter as an inconvenient forum in favor of a Wisconsin court exceeds the limits of legal discretion. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "[T]he appropriate test of abuse of discretion is whether... the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) "[T]rial court discretion is not unlimited. 'The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown." (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) Indeed, the Agency concedes the court's order declining jurisdiction thwarts meaningful reunification efforts and is an absolute abuse of discretion.
We reverse the court's order and direct the juvenile court to hold a new jurisdictional hearing in accordance with our discussion. Further, we share the parents' deep concern that the court's wrongful order has made it difficult if not impossible for them to reunify with their son. Accordingly, we order the court to take whatever steps may be reasonably necessary to facilitate reunification with the parents if reunification can be accomplished.
In its brief, the Agency contends any possible error is moot because "Wisconsin now has both the child and jurisdiction." (Some capitalization, boldface and underlining omitted.) The Agency tells us that we "can grant no relief and the appeal should be dismissed." Patrick has advised us that since he filed his notice of appeal, "the status of the Wisconsin case has not changed. Jurisdictional objections have been preserved, and a jurisdictional trial is pending and has been trailed in part to see what happens in this appeal." The Agency does not dispute this statement, and at oral argument it did not pursue any mootness argument.
DISPOSITION
The March 13, 2009 order yielding jurisdiction to Wisconsin is reversed. The court is directed to hold a new jurisdictional hearing in accordance with the discussion in this opinion.
WE CONCUR: HUFFMAN, J., McDONALD, J.