Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEALS from orders of the Superior Court of San Diego County Super. Ct. No. SJ11809A/B, Ernest Borunda, Judge. Reversed and remanded with directions.
IRION, J.
The San Diego County Health and Human Services Agency (Agency) and the children, Maria V. and Alejandra H., appeal from orders dismissing the petitions filed on behalf of the children under Welfare and Institutions Code section 300. Appellants challenge the court's finding that it lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq. (UCCJEA)).
All further statutory references are to the Family Code unless otherwise specified.
We conclude the court did not err when it determined that it did not have home state or substantial connection jurisdiction under section 3421, subdivision (a)(1) and (2). However, we reverse the orders dismissing the Welfare and Institutions Code section 300 petitions because the court did not consider whether it had emergency jurisdiction after an evidentiary hearing. (In re A. C. (2005) 130 Cal.App.4th 854, 864, citing In re C. T. (2002) 100 Cal.App.4th 101, 107, 108, fn. 3.) We remand the case to the trial court to consider and make proper findings under section 3424. (In re V. F. (2007) 157 Cal.App.4th 962, 966, 973; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824; cf. In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849.)
I
FACTUAL AND PROCEDURAL BACKGROUND
M.V. is the mother of Maria V. and Alejandra H., who are now 10 and four years old respectively. Alejandra's father is C.H. The whereabouts of Maria's biological father is unknown. The court recognized C.H. as Maria's presumed father.
In 1990, at age nine, M.V. came to the United States from Mexico to live with her mother, Esther G. M.V.'s daughter, Maria, was born in San Diego in 1997. M.V. met C.H. in Tijuana, B.C., Mexico (Tijuana). Their son, F.H., was born in Tijuana. In 2002 or 2003, M.V., C.H., Maria and F.H. moved to San Diego, where Alejandra was born (together, family). In July 2004 the family returned to Tijuana, where they lived until November 2005. The family then moved back to San Diego. They returned to Tijuana in August or September 2006.
In January 2007, M.V. and C.H. asked Esther to care for Maria and Alejandra (children) for six months to one year. M.V. and C.H. were working full time and the family had limited financial resources. Maria was displaying behavioral problems. Alejandra needed dental surgery and would be eligible for Medi-Cal after a period of residency in California. In late February, the children began living with Esther in San Diego during the week. They stayed with their parents in Tijuana on weekends.
On March 29, 2007, the San Diego Health and Human Services Agency (Agency) received an allegation that C.H. sexually abused Maria. Nine-year-old Maria was observed touching herself and asking a five-year-old child whether the child's father made love to her like C.H. made love to Maria. An adult intervened when Maria tried to touch the child's crotch. Maria had a history of sexualized behaviors. In 2003, the Agency substantiated a referral of sexual molest of Maria by a teenage relative.
Social worker Wendy Bellido interviewed Maria. Maria said C.H. put his hand down her pants and touched her crotch over her clothes. She also alleged M.V. and C.H. hit her with their hands, sticks, shoes and hairbrushes. Alejandra told Bellido about an incident of domestic violence between her parents. Esther, too, alleged C.H. was violent with M.V. The Agency submitted a cross-report to DIF and requested a safety check on F.H. DIF interviewed F.H., and reported that its assessment did not show there was any risk to F.H. in the family home.
DIF is the commonly used acronym for the Mexican protective services agency Sistema Nacional Para El Desarollo Integral de la Familia.
Bellido advised Esther the Agency would obtain legal custody of the children unless she obtained legal guardianship. On April 11, 2007, with the parents' consent, Esther filed for guardianship of the children. On May 5, the court noted that a juvenile matter was pending, and continued the hearing until June 13. The record does not contain further information about the guardianship proceedings, if any.
In late April 2007, Esther had a business meeting in Tecate, B.C., Mexico. The children accompanied her. Esther arranged for M.V. to visit the children after she sought permission from a social worker. M.V. and C.H. arrived and took the children home. Esther notified Bellido. The Agency immediately involved the international liaison, DIF, Mexican police and the American Consulate.
M.V. informed Bellido that she filed a complaint against C.H. with Mexican authorities, brought Maria to the doctor for a physical examination, and scheduled a May 7 appointment for Maria to be interviewed by a DIF psychologist. Because of the May 7 appointment, Esther could not return to San Diego with the children. Bellido said that because of the children's status as United States citizens, DIF would send the children to the United States pending an investigatio N.M.V. asserted she had paperwork from the Ministerio Publico stating the children could remain with her if she stayed in Tecate. Bellido told M.V. under no circumstances would that happen because M.V. failed to protect Maria by allowing her to have contact with C.H.
On April 27, 2007, M.V. left the children in Tecate with Esther while she returned to Tijuana to file paperwork. M.V. told Esther that she would file a complaint if Esther left Mexico with the children. When Esther relayed this information to Bellido, the social worker asserted Esther and the children were at risk if they stayed in Mexico. Esther agreed to return with the children. When they arrived in San Diego later that day, the Agency detained Maria and Alejandra in protective custody.
On or about May 1, 2007, the Agency filed petitions under Welfare and Institution Code section 300 alleging the children were at risk of sexual abuse by C.H. At the initial hearing, counsel asserted the court did not have subject matter jurisdiction. The court ordered the Agency to contact the Mexican Consulate (the Consul). At the detention hearing on May 3, the court exercised temporary emergency jurisdiction under section 3424, subdivision (a) and requested briefing on whether it had subject matter jurisdiction under the UCCJEA. The court also asked the parents and the Agency to detail where the children lived during the past five years (address forms).
The petitions are file stamped "07 Apr 31." The parties agree the petitions were filed on May 1, 2007.
On June 8, 2007, social worker Valeria Briseno telephoned the Consul and invited him to the hearing scheduled for June 11. The Consul stated he could not attend a court hearing in the United States without prior approval from the Mexican government. The situation was difficult because the children were United States citizens and the parents were Mexican nationals. The Consul was willing to assist the parents with reunification services, but at that time he did not have the authority to comment on jurisdiction because the children were not Mexican nationals.
The matter was heard on June 11, 2007. The court reviewed the case files and the address forms. M.V. stated the family lived in San Diego from December 2005 until August 6, 2006, when they returned to Tijuana. In February 2007, the children began living in San Diego with Esther. C.H. reported the family lived in San Diego from November 2005 to August 2006, and in Tijuana from August 2006 to February 2007.
The Agency reported that the family lived in Tijuana in 2005, in San Diego from 2005 to September 2006, and then in Tijuana until January 2007. The children then lived with Esther in San Diego until April 25, and with M.V. in Mexico until April 27. The Agency stated the children lived with Esther in San Diego on April 27.
In a UCCJEA declaration prepared for the guardianship proceedings, Esther stated the children lived with her in San Diego from February 2007 to the present. She declared the children lived in San Diego with their parents from February 2005 to January 2007, and also declared the children lived in Tijuana with their parents from February 2006 to January 2007.
The court noted inconsistencies in the dates Esther provided. The Agency called her to testify. Esther stated her memory was not good, but she believed C.H., M.V. and the children left San Diego for Tijuana in August or September 2006. The children came to San Diego in February 2007. They were to live with Esther for six months to one year.
The court stated the evidence did not allow it to conclude that California was the children's home state. The children did not live in California for six months before the commencement of the proceedings. The court also found that Esther was not acting as a parent to the children, but rather temporarily helping M.V. and C.H. obtain necessary medical care for Alejandra. There was no evidence to show Mexico declined jurisdiction; further, the evidence strongly suggested the sexual abuse, if any, probably occurred in Mexico. The court determined that it did not have subject matter jurisdiction.
County counsel asked the court to continue to exercise temporary emergency jurisdiction under section 3424, and to hear evidence concerning its request. The court stated that it had read the Agency's reports and understood the actions of the Mexican authorities, and denied the Agency's requests. The court ordered the children "released to the parents, forthwith" and dismissed the dependency petitions (June 11 order).
On June 12, 2007, the Agency and the children filed notices of appeal. On June 12, M.V. filed a request for a hearing to find the Agency in contempt for not releasing the children to her custody as ordered. On the same day, the Agency filed a petition for writ of supersedeas (Petition) in this court. C.H. filed an opposition, which M.V. joined.
On June 13, 2007, this court stayed all trial court proceedings, including the June 11 order, pending hearing on the Petition. On July 9, this court granted the Petition and stayed enforcement of the June 11 order until further order of this court. This court ordered the continued detention of the children and authorized the juvenile court to exercise temporary emergency jurisdiction under section 3424, subdivision (a).
II
INTRODUCTION
The Agency contends the court erred when it determined it did not have subject matter jurisdiction under the UCCJEA. The Agency argues the evidence shows the court had jurisdiction under section 3421, subdivision (a)(1) (home state jurisdiction) and under section 3421, subdivision (a)(2) (significant connection jurisdiction). The Agency also asserts the court erred when it did not maintain temporary emergency jurisdiction of the children until another court assumed jurisdiction to protect the children. Maria and Alejandra, through counsel, join the Agency's arguments.
In its reply brief, the Agency raises for the first time the argument that the court has subject matter jurisdiction under section 3421, subdivision (a)(4), which confers jurisdiction on a court when "[n]o court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)." (Ibid.) Our discussion in part III.B., post, at pages 10-12, concerning home state jurisdiction, is dispositive of this issue. (See also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830 [A contention made for the first time in an appellant's reply brief, unaccompanied by any reason for its omission from the opening brief, is ordinarily deemed waived and disregarded on appeal because considering it either deprives the respondent of an opportunity to answer it or requires the effort and delay of an additional brief by permission].)
M.V. and C.H. maintain the court correctly determined the Agency did not meet its burden to show the court had subject matter jurisdiction on the bases of home state and significant connection jurisdiction. (§ 3421, subd. (a)(1) & (2).) They contend the court did not err when it determined the evidence did not support a continuation of temporary emergency jurisdiction. Finally, M.V. and C.H. contend the Agency's appeal should be dismissed under section 3428 because the Agency secured the physical presence of the children in California by improper means.
III
DISCUSSION
A. Overview of the UCCJEA
The UCCJEA is a jurisdictional statute. Promulgated in 1997 by the National Conference of Commissioners on Uniform State Laws, and adopted in California in 1999, the UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other states. (Stats. 1999, ch. 867, § 3; In re C. T., supra, 100 Cal.App.4th at p. 106.) A " '[c]hild custody proceeding' " is "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue." (§ 3402, subd. (d).) A dependency action is a child custody proceeding. (Ibid.)
The purpose of the UCCJEA is to promote the stability of children by avoiding jurisdictional conflict and increasing cooperation with courts of other states in child custody proceedings, discouraging the use of the interstate system for continuing controversies in child custody disputes, deterring abductions of children, avoiding relitigation of custody decisions of other states in this state, and facilitating the enforcement of custody decrees of other states. (9 West's U. Laws Ann. (2007) U. Child Cust. Jur. & Enf. Act, com. to § 101, p. 657 (Uniform Act).) Foreign countries are treated as states for the purpose of determining jurisdiction. (§ 3405, subd. (a); In re A. C., supra, 130 Cal.App.4th at p. 860.)
"Subject matter jurisdiction either exists or does not exist at the time the action is commenced." (Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1035, citing Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1015, fn. 5.) Thus " '[w]e are not bound by the juvenile court's findings regarding subject matter jurisdiction but rather 'independently reweigh the jurisdictional facts.' " (In re A. C., supra, 130 Cal.App.4th at p. 860, quoting Zachariah K., at p. 1034.)
The UCCJEA sets forth the prerequisites of jurisdiction relevant to this case in sections 3421 and 3424.
B. Home State Jurisdiction
Under section 3421, subdivision (a), there are four jurisdictional bases for an initial child custody determination — home state, significant connection, more appropriate forum, and vacuum jurisdictions. (Hoff, The Uniform Child-Custody Jurisdiction and Enforcement Act (Dec. 2001) U.S. Dept. of Justice, Off. of Justice Programs, Juvenile Justice Bulletin, p. 5 (Bulletin); Hoff, The ABC's of the UCCJEA: Interstate Child-Custody Practice Under the New Act (1998) 32 Fam. L.Q. 267, 278.) Home state jurisdiction has priority. (9 West's U. Laws Ann. (2007) U. Child Cust. Jur. & Enf. Act, com. to § 201, p. 672 (the Uniform Act); Bulletin, supra, at p. 5; see Fam. Code, § 3421.)
Except as otherwise provided in section 3424, which governs temporary emergency jurisdiction, a court of this state has jurisdiction to make an initial child custody determination only if the party seeking to establish jurisdiction can show by a preponderance of the evidence that any of the bases for jurisdiction are true. (§ 3421, subd. (a).) An " '[i]nitial determination' " is defined as "the first child custody determination concerning a particular child." (§ 3402, subd. (h).)
Here, the record does not show that any prior custody orders concerning Maria and Alejandra had been issued. Thus this proceeding is an initial custody proceeding, and section 3421 applies. We therefore review the jurisdictional facts to determine whether the juvenile court has subject matter jurisdiction on the basis of home state or significant connection jurisdiction. (§ 3421, subds. (a)(1) & (2); In re A. C., supra, 130 Cal.App.4th at pp. 859-860.)
Section 3423 governs a modification of a prior custody determination. (See § 3402, subd. (k).)
The " '[h]ome state' " of the child is "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." (§ 3402, subd. (g).) " 'Commencement' means the filing of the first pleading in a proceeding." (Id., subd. (e).) A period of temporary absence from the home state by the child, parent or a person acting as a parent is part of the six-month period. (Id., subd. (g).)
Section 3421, subdivision (a)(1) confers subject matter jurisdiction on a court when:
"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." (Ibid.)
Here, because neither M.V. nor C.H. lived in California and because the children were in California when these proceedings commenced, the only possibility for home state jurisdiction is that California was the children's home state on May 1, 2007, the date the petitions were filed. (See In re A. C., supra, 130 Cal.App.4th at p. 861.) Under section 3402, subdivision (g), California is the children's home state only if the children lived in California from at least November 1, 2006, with a parent or person acting as a parent.
The evidence is clear the children were not living in California as of November 1, 2006. (§§ 3402, subd. (g), 3421, subd. (a)(1).) Further, Esther does not qualify as a " '[p]erson acting as a parent' " under section 3402, subdivision (m). Thus we agree on de novo review with the court's conclusion that it did not have home state jurisdiction under section 3421, subdivision (a)(1).
To qualify as a " '[p]erson acting as a parent,' " a person, other than a parent, must have physical custody of the child or have had physical custody "for a period of six consecutive months, . . . within one year immediately before the commencement of a child custody proceeding; and has been awarded legal custody by a court or claims a right to legal custody under the law of this state." (§ 3402, subd. (m), italics added.)
C. Significant Connection Jurisdiction
A court of this state (California court) may consider whether it has significant connection jurisdiction only when there is no home state or when the home state declines to exercise its jurisdiction on the grounds that the California court would be a more appropriate forum. (§ 3421, subd. (a)(2).) If either one of these conditions exists, the California court has significant connection jurisdiction only when 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 California other than mere physical presence and there is substantial evidence available in California concerning the child's care, protection, training, and personal relationships. (§ 3421, subd. (a)(2)(A), (B).)
The home state of a child may decline to exercise jurisdiction if it determines that it is an inconvenient forum and that the court of another state is a more appropriate forum. (§ 3427.) The home state may also decline to exercise jurisdiction where a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct. (§ 3428.)
In this record, there is no information that Mexico declined to exercise jurisdiction on grounds that California was the more appropriate forum. Therefore, for California to have significant connection jurisdiction under section 3421, subdivision (a)(2), Mexico must lack jurisdiction. (In re A. C., supra, 130 Cal.App.4th at p. 862.) Mexico has home state jurisdiction if the children lived in Mexico with their parents for at least six consecutive months immediately before the petition was filed, including any periods of temporary absence, or Mexico was the children's home state within six months before the commencement of the proceeding and the children are absent from Mexico but a parent continues to live in Mexico. (§§ 3421, subd. (a)(1), 3402, subd. (g).)
Mexico has home state jurisdiction under either ground of section 3421, subdivision (a)(1). The record shows the family left California for Mexico on August 6, 2006, and the children lived in Mexico with their parents until late February 2007. The children's absence from Mexico was temporary. M.V., C.H., and Esther agreed that Esther would help the family through a difficult period and obtain dental surgery for Alejandra by caring for the children in San Diego for six months to one year. They also agreed that Esther would bring the children to Tijuana on weekends to stay with the parents. Accordingly, the children lived in Mexico for more than six consecutive months before the commencement of the child custody proceedings on May 1, and Mexico is the home state of the children.
Interestingly, the record suggests that until the Agency initiated the child abuse investigation on April 2, 2007, the children spent weekends in Tijuana with their parents. The Agency stated that the children were living with M.V. in Mexico from April 25 to 27. The parties did not discuss whether a child's part-time absence from a state renders the child absent from the state under the UCCJEA. However, the fact the children continued to stay with their parents in Mexico on weekends supports a finding that the children's stay in San Diego was temporary.
Mexico also has home state jurisdiction because it was the children's home state within the period November 1, 2006, to May 1, 2007; the children were absent from Mexico; and M.V. and C.H. continued to live in Mexico. (§ 3421, subd. (a)(1).) We conclude on de novo review the court did not err when it determined that it did not have significant connection jurisdiction under section 3421, subdivision (a)(2).
D. Temporary Emergency Jurisdiction
Under the UCCJEA, courts have temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse. (§ 3424, subd. (a); In re A. C., supra, 130 Cal.App.4th at p. 864, citing In re C. T., supra, 100 Cal.App.4th at p. 107.) Emergency jurisdiction is " 'an extraordinary jurisdiction reserved for extraordinary circumstances.' " (9 West's U. Laws Ann., supra, U. Child Cust. Jur. & Enf. Act, com. to § 204, p. 677.) "Emergencies under the [UCCJEA] generally involve sexual or physical abuse." (In re A. C., supra, at p. 864.)
In addition to the grounds for temporary emergency jurisdiction set forth in section 3424, subdivisions (a) through (d), which mirror that found in section 204, subdivisions (a) through (d) of the Uniform Act, the Legislature added a provision not found in section 204 of the Uniform Act when it enacted the UCCJEA. (9 West's U. Laws Ann., supra, U. Child Cust. Jur. & Enf. Act, com. to § 204, p. 677.) Section 3424, subdivision (e) states:
"It is the intent of the Legislature in enacting subdivision (a) that the grounds on which a court may exercise temporary emergency jurisdiction be expanded. It is further the intent of the Legislature that these grounds include those that existed under [former section 3403] as that section read on December 31, 1999, particularly including cases involving domestic violence."
On December 31, 1999, former section 3403, subdivision (a) contained four alternate grounds for subject matter jurisdiction in child custody proceedings. (In re A. C., supra, 130 Cal.App.4th at pp. 864-865.) As pertinent here, former section 3403 authorizes a California court in an emergency to exercise temporary jurisdiction when either of the following are true:
Former section 3403, subdivision (a)(1) corresponds basically to home state jurisdiction under section 3421, subdivision (a)(1). (In re A. C., supra, 130 Cal.App.4th at p. 865.) Former section 3403, subdivision (a)(4) corresponds basically to vacuum jurisdiction under section 3421, subdivision (a)(3) and (4), "with the addition of the express provision that California's assumption of jurisdiction be in the child's best interest." (In re A. C., supra, at p. 866.) For the reasons we discussed in part III.B. and C., ante, neither subdivision (a)(1) nor (4) of former section 3403 is a ground for jurisdiction here.
"It is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and the child's parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships." (Former § 3403, subd. (a)(2).)
"The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. For the purposes of this subdivision, 'subjected to or threatened with mistreatment or abuse' includes a child who has a parent who is a victim of domestic violence, as defined in Section 6211." (Former § 3403, subd. (a)(3).)
"The finding of an emergency is to be made only after an evidentiary hearing, although the juvenile court can detain the child before that hearing." (In re A. C., supra, 130 Cal.App.4th at p. 864, citing In re C. T., supra, 100 Cal.App.4th at pp. 107, 108, fn. 3.)
Notwithstanding the basis for temporary emergency jurisdiction, the duration of a temporary emergency order depends on whether custody has been or is being litigated in another state. (Bulletin, supra, at p. 6; see § 3424, subds. (b), (c), (d).) If there is no prior custody order and no concurrent proceeding in a court with jurisdiction, a child custody determination made in California under temporary emergency jurisdiction remains in effect until an order is obtained from a court of a state having initial or continuing jurisdiction under the UCCJEA (jurisdictional court). (See §§ 3421, 3422, 3423.) If a child custody proceeding has not been or is not commenced in a jurisdictional court, "a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child." (§ 3424, subd. (b).)
If a previous child custody order exists or a custody proceeding has been commenced in a jurisdictional court, the temporary emergency order must specify an adequate period within which the person seeking emergency relief may obtain a custody order from the jurisdictional court. The temporary order remains in effect until a custody order is obtained from the jurisdictional court within the specified period, or the specified period expires. (§ 3424, subd. (c); see Bulletin, supra, at p. 6.)
If a California court is informed of a child custody proceeding or determination in a jurisdictional court, it must immediately communicate with the jurisdictional court. If the court is informed that another state is exercising emergency jurisdiction, the California court must immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. (§ 3424, subd. (d).)
On May 3, 2007, after discussing jurisdictional issues with counsel, the court took temporary emergency jurisdiction under section 3424, subdivision (a), and found that jurisdiction was necessary to protect the child because the child or sibling was subjected to or threatened with mistreatment or abuse. At the time it made that finding, the court noted that it was important to consider the jurisdictional issues in depth, and set a special hearing. On June 11, the court found it did not have subject matter jurisdiction and ordered the children released to their parents. After the court made its findings, the following colloquy occurred between the court and Deputy County Counsel Candice Cohen:
"[Deputy County Counsel]: Your honor, I believe the court can find there is temporary emergency jurisdiction.
"The Court: No. I will not make that finding. There is not temporary emergency jurisdiction.
""[Deputy County Counsel]: I would ask the court entertain evidence to that effect. I do have Ms. Barragan, who at this point would be discussing any -- her testimony would deal with any actions that have been taken by Mexico to this point.
"The Court: That was in her report. I read that. I understand what actions Mexico has taken to this point. They have not declined in any way to take action. No. I will not take emergency jurisdiction. I did that once. That is why we had this hearing.
"Children are released to the parents forthwith.
""[Deputy County Counsel]: Is the court finding that there is no longer an emergency jurisdiction at this point?
"The Court: I don't have to make that finding. The only issue I had to determine was subject matter jurisdiction and there is none.
""[Deputy County Counsel]: If there is not, I believe the court can still find there is emergency jurisdiction based on the statement of the children [and] contact the court in Mexico [to determine] whether they are going to go forward or whether they want us to go forward with this case.
"The Court: Okay. You made your record, counsel. The court declines that opportunity."
The hearing on subject matter jurisdiction on June 11, 2007, was the first evidentiary hearing in the dependency proceedings. The court's finding that it had temporary emergency jurisdiction did not occur after an evidentiary hearing. The better practice is to exercise the court's authority to briefly detain the children until the court determines whether it has subject matter jurisdiction and, if there are no bases for jurisdiction under sections 3421, 3422 or 3423, to consider whether it has temporary emergency jurisdiction under section 3424. (In re A. C., supra, 130 Cal.App.4th at p. 864)
The court erred when it did not consider whether it had temporary emergency jurisdiction after an evidentiary hearing. (In re A. C., supra, 130 Cal.App.4th at p. 864.) Therefore we lift the stay of the June 11 order and remand the matter to the trial court to consider the facts of the case within the appropriate statutory provisions for temporary emergency jurisdiction. (In re V. F., supra, 157 Cal.App.4th at pp. 966, 973; In re Marquis D., supra, 38 Cal.App.4th at p. 1824; cf. In re Gladys L., supra, 141 Cal.App.4th at pp. 848-849.)
Although we do not reverse on these grounds, we note the record does not clearly show what actions were taken or contemplated by Mexican child protective agencies. The Consul indicated it was not certain how to proceed because the children were not Mexican nationals. Although the trial court was correct in finding that Mexico had not declined jurisdiction, there is nothing in the record to show that Mexico was able to proceed with its investigation after the children were returned to California, or that it had commenced a child custody proceeding in court, which would invoke procedures under section 3424, subdivision (d). The mere fact that the home state has not declined to take jurisdiction and may yet implement a child custody proceeding does not resolve an emergency. (§ 3424, subds. (b), (c), (d).)
E. Unjustifiable Conduct
M.V. contends the Agency acted unjustifiably when its personnel interfered with the child abuse investigation by Mexican agencies by securing the presence of the children in California by deception. She argues this court should dismiss the Agency's appeal under section 3428, subdivision (a). C.H. joins the argument.
Section 3428 applies when the court finds that it has subject matter jurisdiction but then is asked to decline to exercise jurisdiction due to the unjustifiable conduct of a person seeking to invoke it. Here, the court determined that it did not have jurisdiction over the child custody proceeding; therefore section 3428 does not apply. In addition, section 3428 does not authorize an appellate court to dismiss an appeal because the trial court did not exercise its discretion to decline to assume jurisdiction.
DISPOSITION
The orders are reversed. The matter is remanded to the juvenile court with directions to entertain further proceedings consistent with this opinion.
WE CONCUR: McCONNELL, P. J., McDONALD, J.
Here, although Esther had initiated guardianship proceedings, she had not been awarded legal custody by a court. Esther readily acknowledged she was temporarily helping the parents with the children's medical needs and with the children's care during the work week. Thus she did not claim a right to legal custody of the children under California law. (§ 3402, subd. (m).)