Opinion
B316532
07-17-2023
In re Gi.C. et al., Persons Coming Under the Juvenile Court Law. v. GABRIELA C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Ernesto Paz Rey, under appointment by the Court of Appeal, for Respondent Harrison B. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21CCJP03122A-B Marguerite D. Downing, Judge. Conditionally reversed and remanded with directions.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Respondent Harrison B.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.
KIM, J.
I. INTRODUCTION
Gabriela C. (mother) appeals from the juvenile court's jurisdiction and disposition orders as to her children Gi.C. and A.B. contending the court failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA; Fam. Code, § 3400, et seq.). Mother also contends the Los Angeles County Department of Children and Family Services (Department) failed to comply with the inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. &Inst. Code, § 224 et seq.). We conditionally reverse the court's jurisdiction and disposition orders for the court to comply with the UCCJEA.
All further statutory references are to the Family Code unless otherwise stated.
II. PROCEDURAL BACKGROUND
On July 7, 2021, the Department filed a Welfare and Institutions Code section 300 petition alleging, as later sustained, that mother and Harrison B., the children's presumed father, had a history of violent altercations in the children's presence, mother had threatened to kill father, mother had a history of substance abuse and was currently abusing marijuana and alcohol, mother had previously been under the influence of marijuana and alcohol while the children were under her care and supervision, and father knew of mother's substance abuse and failed to protect the children by allowing mother to reside in the home and have unlimited access to them.
At the September 21, 2021, disposition, the juvenile court ordered the children suitably placed under the Department's supervision. At a post-appeal hearing on October 17, 2022, the court terminated jurisdiction over the children and entered a custody order awarding father sole legal and sole physical custody of both children with monitored visits for mother pending receipt of a final judgment that it later entered on October 28, 2022.
We grant the Department's December 29, 2022, request for judicial notice.
III. DISCUSSION
A. The UCCJEA
Mother contends the juvenile court erred by failing to comply with the UCCJEA before exercising jurisdiction over the children. We agree.
To the extent that father argues mother forfeited this claim by failing to raise it in the trial court, we reject father's argument. (See In re L.C. (2023) 90 Cal.App.5th 728, 737-739.)
1. Background
On June 25, 2021, the Department received an immediate response referral alleging the children were victims of mother's emotional abuse. That day, a social worker spoke with father who stated he and mother met in Florida where he had been working as a deputy sheriff. They had been in a relationship for about one year and mutually decided to move to Los Angeles at the end of 2020 so that father could advance in his law enforcement career.
According to the manager of the apartment building where the family lived, father signed an apartment lease in December 2020. Only father was on the lease. The manager had attempted to contact father about mother's unauthorized stay at the apartment.
According to father, he and mother later traveled to Florida so mother could file for custody of her son Galvin-Galvin's father did not consent to Galvin moving to Los Angeles. While in Florida, mother gave birth to A.B. in mid-June 2021.
The child is referred to in the record both at "Galvin" and "Gavin." We will refer to the child as "Galvin" as the record appears to use that designation primarily.
After mother gave birth to A.B., she and father got into a verbal dispute about communication issues and father expressed interest in co-parenting with mother and not being in a relationship with her. When mother stated that A.B. would not "stay" with father, father called the sheriff's department in Florida to determine his rights to the child. The sheriff's department advised him and mother to give each other space and assisted father with housing. Father and mother then traveled back to Los Angeles "in [an] effort to work things out."
As their relationship evolved, father came to understand that he and mother were unable to continue their relationship due to their personal differences. Mother indicated to father that she wanted to move back to Florida because Galvin lived there. The day before his interview with the social worker, father told mother that he could "assist in her travels to Florida but wanted to develop a plan that would work best for her and the family." That conversation continued to the day of the interview when mother got upset and punched father in the head twice while he was holding A.B. Father called law enforcement.
Also on June 25, 2021, the social worker spoke with mother. Mother stated that A.B. was born in Florida because she traveled there to obtain custody of Galvin. Mother had left Galvin in paternal grandmother's care prior to moving to Los Angeles because she wanted to get situated before she and the child permanently moved to Los Angeles.
Mother told the social worker she and father moved to Los Angeles in December 2020. She traveled to Florida in June 2021 to gain custody of Galvin.
The social worker spoke with Galvin's father, N.M. He reported there was an open family law case in Florida to establish Galvin's paternity and custody. N.M. also reported that "CPS" contacted him about an open investigation of a domestic dispute between mother and father.
On June 30, 2021, the social worker received a call from Lindsey Malley of Florida "CPS." Malley stated that a child abuse investigation was opened in Florida after father called the hotline and indicated that mother drank heavily, smoked marijuana daily, and drove while under the influence of alcohol and marijuana. Mother and father both declined to submit to an on demand drug and alcohol test.
The Department detained the children on July 2, 2021, and filed its Welfare and Institutions Code section 300 petition on July 7, 2021.
At the August 25, 2021, adjudication and disposition hearing, the juvenile court continued the matter to September 21, 2021, "to allow counsel to sort [through] UC[C]JEA issues." The reporter's transcript for the hearing includes only a brief mention of the UCCJEA-"And then keep in mind that this is not a UCCJEA case, as to minor [Gi.C.]"
In a September 20, 2021, Last Minute Information for the Court, the Department noted that the juvenile court had continued the adjudication hearing "to resolve matters of UCCJEA." The Department also informed the court that both parents planned to move back to Florida. They wanted their case transferred to Florida to be around familial support and to allow mother to work toward custody of Galvin who then had an open case with the Florida Family Court. The court did not address the UCCJEA at the continued adjudication and disposition hearing or thereafter-at least as is reflected in the record on appeal.
2. The Statutory Scheme
"The UCCJEA is a carefully crafted statutory scheme- enacted not just by California but also by 48 other states (excluding only Massachusetts)[fn. omitted]-to determine the appropriate forum for child custody proceedings and avoid conflicting state child custody orders. (In re R.L. (2016) 4 Cal.App.5th 125, 136 ....) The UCCJEA applies to dependency proceedings (§ 3402, subd. (d); In re Aiden L. (2017) 16 Cal.App.5th 508, 516), and is the exclusive method for determining the proper forum in child custody proceedings involving other jurisdictions (§ 3421, subd. (b); In re Aiden L., supra, 16 Cal.App.5th at p. 516).
"The Family Code provision implementing the UCCJEA with which we are concerned is section 3421. It provides, in relevant part:
"'(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.
"'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period." (§ 3402, subd. (g).)
"'(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).'" (In re L.C., supra, 90 Cal.App.5th at pp. 735-736.)
"When it is clear some jurisdiction other than California is the home state of the child in question, efforts to consult with the court in that jurisdiction are required under the UCCJEA. (In re Aiden L., supra, 16 Cal.App.5th at pp. 518-519.) Similarly, where the information before a juvenile court objectively suffices to raise a genuine question about whether another jurisdiction is the child's home state, a juvenile court must obtain additional information as necessary to make a home state determination- and is empowered to contact the court in the other jurisdiction to that end. (§ 3410, subd. (a) ['A court of this state may communicate with a court in another state concerning a proceeding arising under [the UCCJEA]']; In re Aiden L., supra, 16 Cal.App.5th at p. 523 ['it is for the juvenile court in the first instance to hold an evidentiary hearing and to evaluate witness credibility, resolve conflicts in the evidence and make the factual findings necessary to determine whether Arizona was Aiden's home state in August 2014 when the dependency petition was filed']; cf. § 3426, subd. (b) ['[A] court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to [s]ection 3429. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state'].)" (In re L.C., supra, 90 Cal.App.5th at p. 737.)
3. Analysis
Presented with the evidence concerning the family's ties to California and Florida, the juvenile court was required to make a UCCJEA inquiry to determine whether California or Florida was the children's home state. (In re L.C., supra, 90 Cal.App.5th at p. 737 ["where the information before a juvenile court objectively suffices to raise a genuine question about whether another jurisdiction is the child's home state, a juvenile court must obtain additional information as necessary to make a home state determination"].) Although the court continued the adjudication and disposition hearing to allow counsel to sort through the UCCJEA issues, it did not further address the UCCJEA. That was error. Accordingly, we conditionally reverse the court's jurisdiction and disposition orders and remand for the court to comply with the UCCJEA.
The court's brief statement at the initial adjudication and disposition hearing to "keep in mind that this is not a UCCJEA case, as to [Gi.C.]," based apparently on no evidence or arguments from the parties, was insufficient to meet its UCCJEA obligations.
B. ICWA
Mother contends the Department failed to comply with ICWA's inquiry requirements because it made ICWA inquiries only of mother and father and not of other known family members. Because the juvenile court terminated jurisdiction and returned the children to father's custody after mother filed her notice of appeal, mother's contention is moot. (In re E.T. (2013) 217 Cal.App.4th 426, 436 ["An appeal may become moot where subsequent events, including orders by the juvenile court, render it impossible for the reviewing court to grant effective relief"]; see In re J.B. (2009) 178 Cal.App.4th 751, 759 [finding ICWA did not apply to placement of an Indian child with a parent: "ICWA expressly focuses on the removal of Indian children from their homes and parents, and placement in foster or adoptive homes"]; accord, In re M.R. (2017) 7 Cal.App.5th 886, 904-905.)
IV. DISPOSITION
The juvenile court's jurisdiction and disposition orders are conditionally reversed and the matter is remanded to permit the court to determine whether it has jurisdiction under the UCCJEA. If the court on remand determines that it has jurisdiction over the children under the UCCJEA, the jurisdiction and disposition orders are to be reinstated. If the court determines that it does not have jurisdiction over the children under the UCCJEA, the court shall nullify the jurisdiction and disposition orders and proceed as required by the UCCJEA.
I concur: RUBIN, P. J.
MOOR, J., Concurring, in part, dissenting, in part.
I agree with the majority's opinion insofar as it holds that mother's claim of error under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. &Inst. Code, § 224 et seq.) is moot.
I disagree, however, with the conditional reversal of the juvenile court's jurisdiction and disposition orders and the remand for further proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.). Mother forfeited the UCCJEA issue by failing to raise it in the juvenile court, and I see no reason to exercise our discretion to excuse the forfeiture. (See In re L.C. (2023) 90 Cal.App.5th 728, 741-742 (conc. opn. of Moor, J.).)
All further statutory references are to the Family Code unless otherwise stated.
Even if the issue were not forfeited, substantial evidence supports the juvenile court's express and implied findings that California had jurisdiction to make initial custody orders under section 3421, subdivision (a)(1) and/or subdivision (a)(2)(A). (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276 [applying deferential substantial evidence test to UCCJEA analysis involving disputed facts]; § 3402, subd. (g) [home state is where a child lives with parent for six consecutive months before commencement of the child custody proceeding, or where a child under the age of six months lived from birth with a parent]; In re R.L. (2016) 4 Cal.App.5th 125, 139 [temporary hospital stay incident to birth insufficient to confer home state jurisdiction].)
I would affirm the juvenile court's jurisdiction and disposition orders.