Opinion
B322260
01-26-2024
In re H.B., a Person Coming Under the Juvenile Court Law. v. H.B., a Minor, etc., Appellant; BRANDON B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Appellant H.B. Pamela Rae Tripp, under appointment by the Court of Appeal for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of Los Angeles County No. 19LJJP00778A, Donald A. Buddle, Jr., Judge. Dismissed in part and affirmed in part.
Marissa Coffey, under appointment by the Court of Appeal, for Appellant H.B. Pamela Rae Tripp, under appointment by the Court of Appeal for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
INTRODUCTION
Appellant minor H.B., joined by appellant father Brandon B. (collectively appellants), argue the juvenile court failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.) before assuming jurisdiction over H.B. Appellants also argue the juvenile court erred in denying placement of H.B. with the maternal grandmother as required by Welfare and Institutions Code section 361.3. Appellants contend these errors require reversal.
Undesignated statutory references are to the Welfare and Institutions Code.
We find the appeal as to H.B.'s placement has been rendered moot by post-notice of appeal events; we dismiss this portion of the appeal. We next find harmless any error with respect to the UCCJEA requirements and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
On October 24, 2019, the Los Angeles County Department of Children and Family Services (DCFS) detained three-year-old H.B. (born April 2016) and filed a section 300 petition on her behalf. The petition alleged Mother has a history of substance abuse including heroin, cocaine, methamphetamine, and marijuana, and is a current abuser of prescription medication and methadone, rendering her incapable of providing regular care for H.B. (Mother is not a party to this appeal.) The petition also alleged Father has a history of substance abuse and is a current abuser of prescription medication, methadone, and marijuana, with positive toxicology results for opiates, methadone, and marijuana, rendering him unable to provide regular care for H.B. In addition, Mother's mental health and emotional problems, including diagnoses of borderline personality disorder, depression, and post-traumatic stress disorder, coupled with her failure to take prescribed psychotropic medication, endanger H.B. and place her at risk of serious harm.
The detention report provides:
In September 2019, a caller reported Mother appeared incoherent and would "slump over to the point of almost falling." Mother admitted to using drugs and stated she wanted to harm herself. It was reported H.B. "is living in an unsafe home" with many animals "with feces all over." The caller reported Father is also using drugs and is enrolled at the Tarzana Treatment Center. The children's social worker (CSW) visited their home and "observed a strong odor of feces" upon entering the home. Father reported he and Mother had an open case in Hawaii for three years and provided "documentation of case closure" from Hawaii. Mother reported she takes daily methadone to keep her from using heroin, as well as Zoloft and Clonapin. Father reported he previously smoked heroin for three years and currently takes daily methadone treatment.
Three weeks before the petition was filed, Mother was admitted to Antelope Valley Hospital because, according to Father, DCFS's involvement "had an impact effect" on Mother. On October 8, 2019, Father submitted to a drug test, which was positive for marijuana, methadone, and opiates. On October 22, 2019, H.B.'s parents agreed to a temporary voluntary detention of H.B. pending a court hearing.
While Mother and Father have no prior child welfare history in California, the CSW located history for H.B. and her parents in Hawaii. H.B. was born prematurely at 36 weeks gestation and hospitalized in the neonatal intensive care unit. In August 2016, four months after H.B.'s birth, H.B. remained hospitalized. H.B. was experiencing withdrawals, appeared dependent on Subutex, and required morphine drops from which she was weaned. She required feeding via an NG tube. Parents did not display the ability to feed H.B. and their ability to care for her without supervision was "questionable." Mother was observed to be consistently drowsy and unable to form a coherent sentence, and it was suspected Mother was taking more than the prescribed amount of her medication. The Department of Human Services (DHS) in Hawaii received an intake for abuse and neglect of H.B. by her parents. H.B. was removed from parents' care and placed with maternal grandmother (MGM) until February 2019 when H.B. was returned to her parents. Father was designated the primary caregiving parent and the case was closed in April 2019. The family reported to DHS that they were moving to California.
At the detention hearing on October 25, 2019, the juvenile court requested that DCFS provide an update as to "whether there are any UCCJEA issues. [¶] I see in the [detention] report there was a prior matter in Hawaii. I think [DCFS] needs to assess whether there are issues....I want to make sure we have everything we need to determine if that is an issue." The juvenile court found a prima facie case to detain H.B. as a person described by section 300. The court further found a home of parents order contrary to H.B.'s welfare and ordered H.B. removed from her parents' physical custody. The court ordered monitored visitation for the parents, as well as referrals for individual counseling, a parenting class, random drug testing, and a substance rehabilitation program.
B. Continued Investigation During Dependency
In November 2019, Mother was unable to keep her eyes open during an interview with the dependency investigator (DI) and she appeared to be under the influence of heroin. Mother seemed more alert a few hours later and stated she "start[ed] using everything" at age 14, including "weed, cocaine, speed, and heroin." She was a prostitute from age 16 to 24; she "had to work . . . to feed [her] addiction." She has been on methadone since the age of 24 to take away her craving for heroin.
Father was interviewed next. He began smoking marijuana at around nine to 11 years old; at age 14, he used cocaine, and beginning at age 25, he used heroin for two years straight. At 29, "heroin became an everyday thing until [he] was 30-years-old." He currently takes methadone daily. Father reported he and Mother moved to California from Hawaii "in May or June 2019."
H.B. was placed with paternal grandparents. Mother and Father had monitored visits with her.
C. Adjudication
On January 15, 2020, the jurisdictional and dispositional hearing took place. Both parents entered no contest pleas. The juvenile court sustained an amended section 300 petition, declared H.B. a dependent of the court, removed her from parental care, and ordered monitored visitation and family reunification services. The court-ordered case plan for Mother and Father provided for a full drug and alcohol program, weekly drug testing, a 12-step program, parenting classes, and individual counseling.
D. Six-Month Review
H.B. continued to reside at the home of her paternal grandparents and showed progress with her speech impairment. Paternal grandparents were denied Resource Family Approval (RFA) due to paternal grandfather's (PGF) extensive criminal record. Paternal grandmother (PGM) expressed interest in legal guardianship or adoption of H.B.
Mother ceased participation in the drug treatment program after a couple of weeks. She tested positive for substances other than methadone. PGM reported Mother as homeless and residing in a field somewhere within the Antelope Valley with a new boyfriend. Mother made no effort to remain in contact with DCFS. Mother had sporadic visits with H.B. and appeared incoherent at times.
Father was also homeless but made progress with the court-ordered case plan. He completed services to address his dependence on methadone and engaged in classes pertaining to parenting, substance abuse, and life skills. However, Father refused to submit to drug testing and did not permit the CSW to retrieve drug test results. Father's contact with DCFS was minimal. He visited H.B. three times a week, monitored by PGM.
DCFS was able to make contact with Mother on July 2, 2020 via telephone with MGM's help. Mother was residing in Acton, CA with her new boyfriend. Mother indicated she planned to enroll in a drug treatment program. However, she provided no proof of enrollment. Mother asked that her rights "be signed over to" MGM who resided in Hawaii. Father stopped contact with DCFS.
At the hearing on October 20, 2020, the court found continued jurisdiction necessary, return of H.B. to parental care a substantial risk of detriment to her safety and well-being, and minimal parental compliance with the case plans. It ordered continued reunification services for both parents.
E. Twelve-Month Review
H.B. continued her placement at paternal grandparents' home. Father continued with monitored visitation with H.B. three times a week. Mother did not visit H.B. at all and made no contact with DCFS. Father indicated he was still homeless and was not submitting to drug tests.
At the 12-month review hearing held February 3, 2021, the court found parental participation and progress not substantial and terminated family reunification services for both parents. It set a section 366.26 selection and implementation hearing and ordered DCFS to provide permanent placement services to H.B. and to initiate an adoptive home study.
F. Selection and Implementation
By May 20, 2021, Mother had monitored visits with H.B. three times a week, although she was often late and cut the visits short. Father had sporadic virtual contact with H.B.
On August 3, 2021, the juvenile court identified adoption as the appropriate specific goal and permanent plan for H.B.
On August 25, 2021, DCFS informed the court that paternal aunt had been identified as H.B.'s prospective adoptive parent and H.B. had been placed with her as of July 19, 2021. MGM had also moved from Hawaii to Lancaster, CA.
At the hearing on August 26, 2021, Mother asked for an assessment of MGM as part of her "relative placement request." DCFS did not object to assessment of MGM, but explained that "because we have a prospective, adoptive parent, [DCFS] doesn't even have discretion to place [H.B.] with the maternal grandmother." The juvenile court ordered DCFS to assess MGM for placement.
G. MGM's Section 388 Petition and Continued Permanency Planning
On October 13, 2021, MGM filed a section 388 petition requesting unmonitored visitation with H.B., whom she "fostered [for] 3½ years in Hawaii." She indicated that she moved to California to continue caring for H.B. She also stated that she "was live scan[ned] 2 years ago and [was] told because [she] didn't live here, [she] could only get visits with the parents." She would "like to be included and continue to love [and] be in [H.B.'s] life."
On October 28, 2021, DCFS advised the court that the permanency plan for H.B. continued to be adoption by her paternal aunt with whom she was placed.
At the permanency planning hearing held November 3, 2021, Mother requested that MGM "be considered for permanence."
On February 3, 2022, the juvenile court found DCFS "has complied with the case plan while making reasonable efforts necessary to finalize permanent placement of the child." It ordered the adoption of H.B. by the paternal aunt to remain the permanent plan.
H.B. was observed to have thrived and "formed a bond" with paternal aunt, whom she called "mommy." DCFS opined that H.B. had been in her care for almost two years and there is "evident risk of [H.B.'s] mental and emotional health" should she be removed from paternal aunt's care and "moved to yet another home [i.e., with MGM] and start all over."
H. Section 361.3 Relative Placement Request and Hearing
On June 22, 2022, counsel for H.B. filed a brief in support of relative placement with MGM under section 361.3, subdivision (a); the brief included MGM's supporting declaration. It was argued that when H.B. had to be moved from placement with paternal grandparents, DCFS should have assessed MGM for placement instead of the paternal aunt, who was referred to as a non-relative extended family member. MGM stated in her declaration that she had informed the CSW to no avail that paternal aunt was not related; she was PGM's boyfriend's daughter. DCFS opposed the request.
On June 30, 2022, the court held a contested hearing on MGM's combined section 388 petition and her request that H.B. be placed in her custody under section 361.3. All parties stipulated that the parents were in favor of placement of H.B. with MGM.
The juvenile court heard testimony from MGM and from the CSW who observed a "strong bond" between H.B. and the paternal aunt and described their interactions as "very positive." H.B. called paternal aunt her "mom" or "mommy," and she was in H.B.'s "comfort zone." The CSW also observed visits between H.B. and MGM and described their interactions as positive. She observed H.B. refer to MGM as "Mimi." The CSW opined the bond was stronger between paternal aunt and H.B. than it was between H.B. and MGM.
H.B.'s counsel argued the relative placement preference still applied at this stage of the proceedings and requested that H.B. be placed with MGM per section 361.3. Mother and Father joined in H.B.'s argument. DCFS noted that MGM never requested placement of H.B. until August 2021 and that her belated request did not trigger the relative placement preference because the child had been with her caregiver at the prospective adoptive home of paternal aunt.
The juvenile court announced its ruling on July 11, 2022. The court granted MGM's section 388 petition for unmonitored visitation with H.B. every other weekend. As for MGM's request for placement of H.B. per section 361.3, the juvenile court summed up the question as "does the caretaker preference or the relative placement preference apply to these set of facts?" The court found the relative placement preference no longer applied because MGM sought placement after termination of family reunification services and after H.B.'s placement in paternal aunt's home with a permanent plan of adoption underway. The court stated, "When a relative requests placement before disposition and the agency does not timely complete the assessment, the relative is entitled to a [section] 361.3 hearing even after termination of reunification.... [¶] However, once the court identifies adoption as the permanent plan, the relative placement preference under [section] 361.3 no longer applies as the court understands it.... Instead, the intent to place the child for adoption triggers the caretaker preference under [section 366.26, subdivision (k)].... So for those reasons, the court finds that the caretaker preference applies at this stage of the case." The court also found the CSW's testimony and reports credible and "didn't find some of [MGM's] testimony to be credible."
On July 14, 2022, H.B. filed a notice of appeal from the July 11, 2022 ruling. On July 27, 2022, Father filed a notice of appeal as well.
DISCUSSION
Appellants make two arguments on appeal: (1) the juvenile court erred in applying the caretaker preference over the relative preference when it denied MGM's request that H.B. be placed with her; and (2) the juvenile court failed to adhere to the requirements of the UCCJEA before assuming jurisdiction over H.B., requiring reversal.
A. Appeal of Placement Order Has Been Rendered Moot
H.B. and Father argue that the juvenile court erred when it applied the caretaker preference under section 366.26, subdivision (k), and placed H.B. with paternal aunt instead of applying the relative placement preference under section 361.3 to place H.B. with MGM. At this juncture we note post-notice of appeal events that affect this issue.
On December 1, 2023, we granted H.B.'s request for judicial notice, filed on November 30, 2023, of the juvenile court's order of November 14, 2023, where the juvenile court found "the extent of progress made [by Mother] toward alleviating or mitigating the causes necessitating placement . . . has been substantial." The juvenile court further found returning H.B. to parental custody would not create a substantial risk to her safety, terminated the placement order, and returned H.B. to Mother's custody and care.
On December 4, 2023, this court invited the parties to brief whether the appeal of the juvenile court's placement order was rendered moot when the juvenile court released H.B. to Mother's care and custody.
We received a response from H.B. and DCFS and no response from Father. DCFS argued the placement issue was moot now that H.B. was in Mother's custody and care. H.B. disagreed and asked us to reach the merits because the issue is likely to reoccur should H.B. be subsequently detained from Mother's custody and paternal aunt is again considered for placement, notwithstanding "the erroneous identification of PGM's boyfriend's daughter as H.B.'s paternal aunt."
Despite H.B.'s claims that DCFS consistently misidentified PGM's boyfriend as PGF and PGF's daughter as paternal aunt, we find there is little to no evidence to support the claim. The only evidentiary support is MGM's declaration filed concurrently with H.B.'s June 22, 2022 brief in support of MGM's relative placement request. However, the juvenile court specifically found some of MGM's testimony not credible. We note that issues of fact and credibility are within the province of the juvenile court. (In re I.J. (2013) 56 Cal.4th 766, 773.) And, even if H.B. were removed in the future from Mother's custody, there is no impediment to appellants revisiting the issue of whether paternal aunt should be considered for placement.
We conclude the issue of placement has been rendered moot and there is no reason to reach the merits." '" '[T]he duty of this court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" [Citation.] . . . "[W]hen, pending an appeal from the judgment of a lower court, . . . an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellants], to grant . . . any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal." '" (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316.) Because we cannot grant effective relief and the contingencies appellants raise are not foreclosed from being litigated in the future, the appeal of the placement order is dismissed.
B. Any UCCJEA Error Was Harmless
1. Standard of Review
Interpretation of the UCCJEA is a question of law we review de novo. (A.H. v. Superior Court (2023) 89 Cal.App.5th 504, 517 (A.H.).) We review de novo a juvenile court's determination of jurisdictional facts based on undisputed evidence and its interpretation of statutes. (In re A.C. (2017) 13 Cal.App.5th 661, 670.) In contrast, when the facts are contested, a juvenile court's findings of fact are reviewed for substantial evidence in determining jurisdiction under the UCCJEA. (A.M. v. Superior Court (2021) 63 Cal.App.5th 343, 351.)
Failure to comply with the procedural requirements of the UCCJEA is subject to harmless error analysis. (A.H., supra, 89 Cal.App.5th at p. 517.) That is, the party challenging the ruling of the lower court must show it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Ibid.)
2. Applicable Law
"The UCCJEA is a carefully crafted statutory scheme- enacted not just by California but also by 48 other states (excluding only Massachusetts)-to determine the appropriate forum for child custody proceedings and avoid conflicting state child custody orders." (In re L.C. (2023) 90 Cal.App.5th 728, 735 (L.C.); In re R.L. (2016) 4 Cal.App.5th 125, 136 ["The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation of custody decisions, promote cooperation between states, and facilitate enforcement of another state's custody decrees."]; In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348 (Jaheim B.) ["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."].) The UCCJEA applies to dependency proceedings (Fam. Code, § 3402, subd. (d)) and is the exclusive method for determining the proper forum in child custody proceedings involving other jurisdictions (Fam. Code, § 3421, subd. (b)).
The Family Code provision implementing the UCCJEA is Family Code section 3421, subdivision (a). In re A.M. (2014) 224 Cal.App.4th 593 helpfully clarified and summarized the four interrelated scenarios of Family Code section 3421: "California may assume jurisdiction to make an initial child custody determination only if any of the following apply: California is the child's 'home state,' meaning the state in which the child lived with a parent . . . for at least six consecutive months immediately before the child custody proceeding was commenced ([Fam. Code,] §§ 3421, subd. (a)(1), 3402, subd. (g)); a court of another state does not have jurisdiction because it is not the child's home state ([Fam. Code,] § 3421, subd. (a)(2)); a court of the child's home state has declined to exercise jurisdiction on the ground California is the more appropriate forum (ibid.); all courts having jurisdiction have declined to exercise jurisdiction on the ground California is the more appropriate forum ([Fam. Code,] § 3421, subd. (a)(3)); or no other state has jurisdiction under the foregoing tests ([Fam. Code,] § 3421, subd. (a)(4))." (In re A.M. at p. 598.)
The general rule of the UCCJEA is that once the court of an appropriate state-that is, one having jurisdiction under its terms-has made an initial child custody determination under Family Code section 3421, "that court obtains exclusive, continuing subject matter jurisdiction over the child." (A.H., supra, 89 Cal.App.5th at p. 523, italics added.) A court that properly acquired initial jurisdiction has exclusive, continuing jurisdiction until either of two delineated circumstances occur: (1) a court of the issuing state itself determines that "neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships," or (2) there is a judicial determination by either the issuing state or any other state that "the child, the child's parents, and any person acting as a parent do not presently reside in" the issuing state. (Fam. Code, § 3422, subd. (a)(1) &(2).)
"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." (L.C., supra, 90 Cal.App.5th at p. 737, italics added.) "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." (Ibid., italics added; Fam. Code, § 3410, subd. (a).)
A jurisdictional finding under the UCCJEA should be made after an evidentiary hearing. (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1097, 1099-1100 (Cristian I.); see In re Aiden L. (2017) 16 Cal.App.5th 508, 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"].) "[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 [Family Code] [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." (Fam. Code, § 3426, subd. (b).) If the other court declines to exercise its jurisdiction, the juvenile court in this state has jurisdiction under the UCCJEA to proceed with hearing the dependency petition. (Fam. Code, § 3421, subd. (a)(2)-(3) [jurisdiction to make initial custody determination when home state court declines jurisdiction because California is the more appropriate forum].)
Furthermore, generally a court of this state may not modify a child custody determination made by a court of another state "unless a court of this state has jurisdiction to make an initial determination" per Family Code section 3421, subdivision (a)(1) or (2), and either of the following determinations are made: "(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under [Family Code] [s]ection 3422 or that a court of this state would be a more convenient forum under [Family Code] [s]ection 3427. [¶] (b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state." (Fam. Code, § 3423; see Cristian I., supra, 224 Cal.App.4th at pp. 1095, 1101 [juvenile court had jurisdiction to adjudicate dependency petition after court from Arizona that had issued custody order ceded its jurisdiction to California court].)
We note Family Code section 3424 provides an exception to the exclusive jurisdictional bases for making custody determinations in California. (In re A.M., supra, 224 Cal.App.4th at p. 599.) California "has temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to, or threatened with, mistreatment or abuse." (Fam. Code, § 3424, subd. (a), italics added.) An "emergency" exists when there is an immediate risk of danger to the child if he or she is returned to the parent. (Jaheim B., supra, 169 Cal.App.4th at p. 1349; In re Nada R. (2001) 89 Cal.App.4th 1166, 1174-1175.) In enacting Family Code section 3424, subdivision (a), the Legislature intended that this provision be applied expansively. (Id., subd. (e).) It is "infer[red] from this statutory scheme the Legislature's intent to afford all children found in California the protection of California's juvenile court in exigent circumstances." (In re Angel L. (2008) 159 Cal.App.4th 1127, 1138, italics added [for instance, the children's presence in California, where they were found in care of an inappropriate caretaker and in a filthy, hungry and neglected condition, justified jurisdiction].)" 'Aside from the necessity of protecting a child from immediate harm, presence of the child in the state is the only prerequisite' to taking action." (Ibid.)
Finally, failure to "comply with the procedural requirements of the UCCJEA is subject to harmless error analysis. [Citations.] Before any judgment can be reversed for ordinary error, it must appear that the error complained of 'has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.) Reversal is justified 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cristian I., supra, 224 Cal.App.4th at pp. 1098-1099.) The harmless error standard requires the appellant to show "merely a reasonable chance" of a more favorable outcome, which is "more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, italics omitted.)
3. Analysis
We first address DCFS's argument that H.B. and Father waived and/or forfeited their challenge to the UCCJEA issue by failing to raise the issue before the juvenile court below. DCFS relies on In re J.W. (2020) 53 Cal.App.5th 347 (J.W.), which held that an objection based on lack of UCCJEA jurisdiction can be forfeited because the UCCJEA does not implicate a juvenile court's fundamental jurisdiction. (J.W., at p. 355.)
Appellants argue we should exercise our discretion to consider the merits of the issue like the court did in L.C. In that case, neither DCFS nor the juvenile court, despite knowing of the mother's recent out-of-state residence and prior Texas child welfare case, investigated whether Texas might have jurisdiction under the UCCJEA. (L.C., supra, 90 Cal.App.5th at p. 734.) Without deciding whether the UCCJEA concerns fundamental jurisdiction, which is an unsettled issue, the court found the mother had not forfeited any issue under that statutory scheme and could raise it for the first time on appeal. (L.C., at pp. 737738; see generally J.W., supra, 53 Cal.App.5th at p. 356 [fundamental jurisdiction is an absence of power to hear a case and can be raised for the first time on appeal].)
We find the general facts surrounding H.B.'s recent change in residence and the parents' prior child welfare case in Hawaii are quite comparable to the facts of L.C. We follow the court's reasoning and holding in L.C. and proceed to the merits of the UCCJEA issue raised by appellants.
Here, DCFS was aware of the prior dependency matter in Hawaii, lasting from March 2016 until April 2019. Despite the juvenile court's initial commentary at the detention hearing and its order that DCFS provide an update as to "whether there are any UCCJEA issues," no effort was made by DCFS to further investigate and resolve possible UCCJEA issues. Neither did the juvenile court consult with the court in Hawaii or conduct a jurisdictional analysis. The juvenile court erred in allowing the issue to die on the vine.
On the merits, DCFS argues California was H.B.'s home state, based on an inaccurate factual assertion. DCFS claims Father reported that H.B. had her feeding G-tube removed at a California hospital on April 2, 2019. The record cited by DCFS does not establish that the hospital was in California; it merely states that the feeding tube was removed on April 2, 2019. The record actually provides that Father reported having moved to California with H.B. and Mother in "May or June 2019." As the petition was filed by DCFS in California on October 24, 2019, H.B. resided in California for less than six months, which disqualifies California as H.B.'s home state.
However, we need not address the requirements of Family Code section 3421, subdivision (a), as it is obvious to us that any error was harmless. The record does not demonstrate a reasonable chance that, if the juvenile court had made UCCJEA findings, it would have concluded it lacked UCCJEA jurisdiction. The record is replete with evidence that emergency jurisdiction under the UCCJEA applies.
Here, the exercise of emergency jurisdiction by California was warranted because Mother and Father not only had serious histories of substance abuse, but also currently abused drugs. Added to their ongoing substance abuse was Mother's mental health issues, her refusal to take her prescribed medication, and the parents' inconsistent and, at times, nonexistent visitation with their child. Each dropped out of sight for several months at a time. This combination of factors placed three-year-old H.B. at risk of serious harm had she been returned or released to the custody of her parents, warranting the juvenile court's exercise of temporary jurisdiction. (See Jaheim B., supra, 169 Cal.App.4th at pp. 1349-1350 [the juvenile court "did have emergency jurisdiction . . . because Jaheim was present in California when the neglect occurred, and the court's action was necessary to protect Jaheim from immediate harm"].) Although emergency jurisdiction is generally intended to be short term and limited, the juvenile court may properly continue to exercise its authority as long as the risk of harm creating the emergency was ongoing. (Cristian I., supra, 224 Cal.App.4th at p. 1097.)
DISPOSITION
We dismiss the portion of the appeal challenging the placement order and otherwise affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: GRIMES, J. WILEY, J.