Opinion
B323839
12-21-2023
In re T.T., a Person Coming Under the Juvenile Court Law. v. K.O., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, 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NOT TO BE PUBLISHED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. 20CCJP01355C Hernan D. Vera, Judge. Conditionally reversed and remanded with directions.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
INTRODUCTION
Appellant K.O. (Father) challenges the juvenile court's jurisdictional and dispositional findings and orders over his minor son T.T. for failure to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.). Mother is not a party to this appeal. Father contends the California juvenile court lacked jurisdiction over T.T., and this error prejudiced Father. Father asks us to reverse and remand with instructions to comply with the requirements of the UCCJEA.
Undesignated statutory references are to the Family Code.
We find the juvenile court erred and the error requires conditional reversal of the underlying findings and orders with directions to the juvenile court to undertake the process that the UCCJEA requires.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Filing of Petition
On May 30, 2022, the family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) when the reporting party disclosed Mother called law enforcement following a domestic violence incident. It was reported Father pushed Mother, and Mother pushed Father and struck his face. Four-year-old T.T. was in his bedroom during the incident. Reporting party disclosed no one was arrested due to "not being able to determine a dominant aggressor." Father agreed to leave home for the night.
Throughout the following month, a children's social worker (CSW) made multiple attempts to contact Mother by visiting her home and calling her with no response. On June 28, 2022, the CSW blocked her own telephone number and called Mother, who answered. The CSW asked Mother when she would be available to meet; Mother said, "Umm" and ended the call. The CSW attempted to call Mother back, but she did not answer.
On July 14, 2022, the CSW and Los Angeles Police Department made an unannounced visit to Mother's home to execute an Investigative Search Warrant. They observed Father outside of the property. Father reported he was "put out of the home" by Mother following a verbal argument that morning. He could not leave because Mother withheld his backpack inside the apartment, which he needed to return to his home in Washington state. Father reported he "has been sleeping on the street because [M]other frequently puts him out of the home." He denied any physical altercation between himself and Mother but stated Mother "has mood swings and exercise[s] her rights to put him on the street for ridiculous reasons."
Father stated he has two children with Mother: T.T. (born February 2018) and Tyson (born June 2015). Father has been traveling between his home in Washington State and Mother's home in Los Angeles since December 2021; he recently returned from Washington on May 9, 2022. Father stated T.T. was currently inside the home with Mother and Tyson was in Washington with paternal grandmother (PGM). Father stated he came to Los Angeles because Mother had made him believe she could add him to her housing assistance. He believed Mother lied to "get him to agree to come to Los Angeles with the children." He explained T.T. would remain with Mother in Los Angeles until Father returned to Washington and "get[s] back on his feet." He planned to seek a modification of the custody agreement and parenting plan in Washington. He expressed concern about Mother's parenting-"Her normal is zero structure. She lets [T.T.] do what he wants. There is no bedtime; he uses the tablet too much; and he eats junk. All the things that are not good .... [T.T.] has regressed in some areas since being back here." Father reported he had completed a parenting program, substance abuse program, and anger management in the past. He has been "[c]ompletely clean" since then.
This was later confirmed by the CSW-Father completed his IOP Treatment program and relapse awareness group with Evergreen Treatment on October 5, 2021. He previously completed a mental health assessment and anger management class.
The CSW found Mother's home to be "unorganized and cluttered." The windows were painted brown; both the front and back doors were damaged. There was food on the countertop of the kitchen with flies swarming over it. The refrigerator had food inside and while the home was "messy," there were no visible safety hazards.
Mother stated she has been in an on-again off-again relationship with Father since 2009. They are currently not in a relationship but are "trying to co-parent." She reported having called the police "to get [Father] out, but he breaks back in." She stated Father managed to break back into her home by removing the deadbolts from her doors. She said Father "threw a brick through the window yesterday." She stated Father keeps a notebook of things he writes down about Mother to utilize against her in court for custody. Mother admitted she threw a cup of bleach at Father; T.T. was in the home at the time but did not witness the interaction.
Mother confirmed their older son Tyson resides in Washington with PGM "because that is where he is most familiar" as he has been in Washington "most of his life." Mother explained that a parenting plan was put in place in the Washington case where she was awarded 50/50 custody of the children. Per Mother, Father and the children came to live in Los Angeles in December 2021, but Father left Los Angeles with the children in February 2022 while Mother was in jail for a domestic violence incident with Father. Father and T.T. remained in Washington and returned to Los Angeles following her release from jail.
On July 15, 2022, the CSW interviewed PGM via telephone. PGM reported she has no legal guardianship of Tyson, and she has had Tyson in her care since he was three weeks old. He is doing well in school and will soon start first grade. PGM stated Father has always acted responsibly when working with PGM in caring for the children. She was worried about T.T. having necessities when with Mother. PGM stated T.T. has a speech impediment and has regressed. She received a voicemail from T.T. asking for help and the voicemail recorded Mother yelling at someone. PGM cared for T.T. in the past; he is "returned to [her] care every few months." T.T. receives all his medical and dental care in Washington via the same providers as Tyson. PGM reported Mother manipulates the children into believing Father does not love them. PGM is aware of Mother's and Father's history of methamphetamine use. Per PGM, Father completed rehab. In the past, T.T. was removed from Mother's care when she was under the influence. PGM also stated Mother was arrested in 2021 for domestic violence against Father in the children's presence. PGM expressed concern about maternal grandmother (MGM) impeding DCFS's investigation because MGM is a DCFS employee.
The CSW next interviewed MGM, who stated she was willing to take T.T. into her care. MGM had not seen T.T. often and was concerned about his "getting . . . back on track academically." MGM was concerned about "what [T.T.] has experienced in the home with [M]other and [F]ather" and their "arguing and fighting." She reported Father used methamphetamine in the past and Mother currently smokes weed but did not know if Mother does any other drugs. MGM stated Mother and Father had a family law case in Washington.
On July 19, 2022, Mother informed the CSW she called the police that morning because Father "trespassed into [her] home at 5 [a.m.] asking [M]other's permission to use her restroom." Mother stated T.T. has been with MGM since July 15, 2022 because she is "worried about [F]ather trying to take the child . . . to Washington."
On July 20, 2022, Father informed the CSW he was on his way back to Washington and that he would try to get T.T. back in Washington to be with his sibling Tyson.
On July 21, 2022, the CSW reviewed referrals about the family to Child Protective Services (CPS) in Washington-there were 30 referrals from August 18, 2018 through March 3, 2022. The majority of the referrals were reports of domestic violence and methamphetamine use by both parents. The CPS documents received by the CSW did not include information about open cases.
On July 22, 2022, Mother submitted to a drug/alcohol test, which came back positive for marijuana, methamphetamine, and amphetamine.
On August 2, 2022, the children were detained from Mother and Father via a removal order.
B. Petition and Detention
On August 4, 2022, DCFS filed a Welfare and Institutions Code section 300 petition on behalf of T.T. and Tyson. (Tyson's case was later dismissed.) The petition alleged: (1) Mother and Father have a history of engaging in violent physical altercations, including prior occasions where both parents sustained marks and bruises; (2) Mother has a history of and is a current abuser of methamphetamine, amphetamine, and marijuana which renders her incapable of providing the children with regular care and supervision and Father "knew or reasonably should have known" of Mother's substance abuse and failed to protect T.T. by allowing Mother to have unlimited access to him; (3) Father has a history of substance abuse including methamphetamine and marijuana which renders him incapable of providing children with regular care and supervision and places the children at risk of serious physical injury.
At the initial hearing on August 5, 2022, the juvenile court stated on the record: "Let me start also by acknowledging that there are some difficulties legally in what has been filed given where the parents have lived, and so we're not going to be able to resolve all of those issues today. But rather than arraign the parents today on a petition and raise questions about whether jurisdiction is appropriate, I'm going to defer . . . any arraignment until we make those decisions."
Father requested that the juvenile court and DCFS "investigate the UCCJEA issue further as Father believes that the appropriate jurisdiction would be in Washington. The oldest child has always primarily lived in Washington State, and the youngest child [T.T.] has only been [in California] since March."
The juvenile court acknowledged it had "questions about whether I even have jurisdiction to make any orders." The juvenile court ordered T.T. removed from both parents' care and ordered monitored visits.
C. Continued Investigation During Dependency
DCFS researched the family's prior child welfare history and learned that referrals alleging Mother's neglect of T.T., parental drug abuse, or domestic violence by Mother against Father were received by DCFS on January 29, 2022, January 17, 2020, July 26, 2019, and April 30, 2018.
In addition, on March 4, 2020: DCFS filed a Welfare and Institutions Code section 300 petition. T.T. was ordered removed from Mother and released to Father's care in Washington. In July 2020, T.T. was detained from Father and placed in shelter care. On September 23, 2020, a dependency investigator (DI) was notified via e-mail that "Washington would be filing a petition on behalf of [T.T.]." On October 6, 2020, DCFS received confirmation "the court in Washington has taken jurisdiction and ordered [T.T.] placed with [F]ather." On October 9, 2020, the California juvenile court dismissed the petition and indicated on the minute order: "The Court finds the state of Washington is taking jurisdiction."
The CSW received the following information and records from Washington CPS:
On May 25, 2019, a referral made in Washington indicated the caller was worried for T.T.'s safety as Mother had dropped him in the past and failed to care for an ear infection in a timely manner, leaving T.T. hearing-impaired. The caller had hospital records indicating T.T. was dropped or fell down a flight of stairs, had a prolonged ear infection, and required an operation to place tubes and drain the fluid.
The declaration of the family's prior CSW Jessica Kleckner from Washington, dated November 2, 2021, provided: "Given that there was an existing parenting plan out of Washington State for an older child shared by the parents, a UCCJEA conference was held between the two jurisdictions and it was determined that Washington State was the proper forum." (Italics added.) The case was "transferred into Unified Family Court for entry of a parenting plan as to [T.T.], as the child was placed with his father. [M]other eventually had her visitation liberalized to unsupervised. [¶] On [October 8, 2021], a parenting plan was finalized in Snohomish County Superior Court for [T.T.]." On November 2, 2021, a dismissal was requested "of the Extended Shelter Care Case as to [T.T.]" because "[F]ather has shown that he is able to provide appropriate and safe care for [T.T.] moving forward."
Per an order entered on October 8, 2021 in Washington, a parenting plan was finalized with joint parenting and shared custody between the parents; parents were to return to court for any dispute resolution. The order provided "[M]other lived in California and [F]ather lived in Washington." The CSW reported Father completed anger management, a mental health assessment, and an outpatient substance abuse program, but Mother did not complete any services.
D. Progress Hearing
On September 7, 2022, DCFS submitted a Last Minute Information (LMI) relevant to UCCJEA jurisdiction:
Since Tyson's birth, "the family has been back and forth between the two states." In 2017, Father filed a request for custody in Washington, which was granted; "Mother moved to Washington during this time. Due to [F]ather having primary custody of Tyson, [Tyson] has primarily lived in Washington for the entirety of his life with [PGM] being his primary caretaker." There was "no prior custody order regarding [T.T.], who was born in Washington." Sometime in 2019, Mother returned to California with T.T. In 2020, a dependency case was filed and "Washington agreed to take jurisdiction of the case as [M]other and [T.T.] were only living in California for a few months before the petition was filed. [T.T.] moved back to Washington to reside with [F]ather and Tyson." In November 2021, when the case closed in Washington, Mother and Father were granted joint custody. "In December 2021, the family moved into [M]other's home; however, due to the domestic violence incident that took place on [January 29, 2022], [F]ather then returned to Washington with both children." In March 2022, Father returned to California with T.T. and Mother, but Tyson remained in Washington with PGM. T.T. had been in California since March 2022.
At the progress hearing held on September 12, 2022, the court ordered DCFS to assess PGM for guardianship and placement of Tyson and ordered continued placement of T.T. in shelter care. As for the UCCJEA, the juvenile court stated: "We are here to check in on questions of jurisdiction, and we were also set for the initial appearance.... [T]oday I am going to be arraigning both parents without prejudice to their asserting UCCJEA objections. We have the adjudication, the trial, next week. At that time I will invite . . . full argument by parents' counsel and [DCFS] and minors' counsel on the issue of jurisdiction. I am inclined to accept jurisdiction, but I'll hear argument from everyone, and if I agree that jurisdiction is proper, then we'll go forward with the trial next week."
E. Adjudication
In anticipation of adjudication, DCFS submitted an LMI advising the juvenile court that PGM reported she was "interested in having guardianship or being a placement option" for T.T.; "[T.T.] was doing well in her home in 2020-2021 and again from February 2022 to March 2022." T.T. was enrolled in school during both time periods, including on February 7, 2022 during his most recent return back to Washington with Father. PGM confirmed Father continues to reside in her home in Washington with Tyson. The DI consulted "with the [Interstate Compact on the Placement of Children (ICPC)] unit as to the possibility of initiating an ICPC assessment for [PGM] as to placement of" T.T. with PGM. DCFS stated that placement with PGM "could be an appropriate option for [T.T.]" as he has "a bond" with PGM and has lived with her and Tyson in Washington in the past. The DI next spoke with MGM, who indicated she obtained housing and is "hopeful" T.T. will be placed in her care. However, MGM still had not completed her assessment. DCFS did not recommend placement of T.T. with MGM.
On September 21, 2022, the jurisdictional and dispositional hearing took place.
At the outset of the hearing, the juvenile court stated: "Before we get to any substance, I want to put on the record that, after my review once again of both the detention report, the jurisdiction report, and various other reports on this matter, that [as to] the older minor, the court is dismissing the petition today. The minor has not been in California for six months. The minor is in Washington, and the court doesn't have any jurisdiction over that minor and no basis to move forward on any petition on behalf of Tyson. So I am dismissing the matter for Tyson only."
The juvenile court continued: "[T.T.] is here in Southern California, and I have . . . also reviewed the timeline. I believe that Mother has-and the child have been in California for over six months. I know that there was a gap period, but case law is clear that so long as one of the parents is here in California[,] that a gap period for the child does not destroy home state jurisdiction for California.... [M]y finding, at least for today, is that we can go forward with the adjudication for [T.T.] and that California is the home state."
The court proceeded to adjudication. Mother entered a plea of no contest to the amended language of the petition.
Father objected to the jurisdiction of the juvenile court, and testified to the following:
T.T. was born in Chewelah, Washington. Until December 13, 2021, T.T. was living with Father in Lynnwood, Washington. They left Washington on December 13, 2021, and arrived in Los Angeles on December 16 after driving for three days. T.T. returned to Washington on January 31, 2022. They flew back to Los Angeles on March 6, 2022. T.T. primarily resided with Father; this was primarily due to "instability as far as housing for Mother" and because "this was their home. This is where they were comfortable and taken care of and had stability and safety." T.T. lived with Father from October 8, 2020 until December 2021. He "spent well over half of his life with [Father] in Washington State."
T.T. is enrolled in preschool in Washington-at Trinity Lutheran Preschool in Lynnwood, Washington. "They held his place for him while we were gone when we left in December." He attended that preschool for the entire month of February into the first week of March. T.T.'s primary medical care physician is Dr. Del Beccaro at Ballard Pediatrics in Seattle, Washington. To Father's knowledge, T.T. has not received medical or dental care in California. T.T. receives benefits in Washington-"[t]he general, the EBT." T.T.'s health insurance is also based in Washington. T.T. went to a dentist's office in Washington.
Following further argument, Father once more asserted his objection to jurisdiction because "Washington State is the best venue for this case" and asserted "the court must reach out to the Washington courts to determine whether or not they will accept jurisdiction of this case."
As to T.T., the court amended the petition by interlineation, sustained the remaining parts of the petition based on Mother's no contest plea, and found T.T. is a person described by Welfare and Institutions Code section 300, subdivision (b).
On the issue of jurisdiction, the court found "Mother has been in California continuously for almost nine months before the detention of the minor, and the court believes that case law is clear that where there is a gap by the child and one parent-in this case the Mother is continuously present in California- California can, and is, the home state. [A] lot of the issues that were raised relate to possible nonconvenience grounds, but the court finds that California is an adequate forum. The conduct did occur here, the evidence is here, and there's no reason to have Washington take jurisdiction. Even though the minor did spend . . . a considerable amount of time there, and going to school, the requirements for jurisdiction have been satisfied here in California."
As for disposition, the juvenile court ordered T.T. removed from both parents' care and found removal necessary based on "fairly significant domestic violence" as well as "significant meth use by both Mother and Father." The court ordered T.T. to "remain suitably placed." The court ordered monitored visitation for parents with discretion to DCFS to liberalize. The court-ordered case plan for Mother and Father included a full drug/alcohol program and on-demand weekly drug testing for a minimum of six months, as well as completion of a 12-step program.
That same day, Father filed a notice of appeal.
DISCUSSION
Father contends the juvenile court failed to comply with the requirements of the UCCJEA. More specifically, Father argues the juvenile court did not have jurisdiction over T.T. "because the initial custody determination was not made in California, and California did not obtain jurisdiction prior to making the findings and order[s]." Father argues the initial custody determination was made by the Washington juvenile court and that Washington had exclusive continuing jurisdiction under the UCCJEA over T.T. until such time that "Washington's jurisdiction was no longer reasonable." Father also argues the juvenile court lacked jurisdiction to modify the Washington custody order. Father contends the juvenile court's failure to comply with the UCCJEA's requirements prejudiced him.
A. 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.)
B. 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, fn. omitted (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 ["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 (§ 3402, subd. (d)) and is the exclusive method for determining the proper forum in child custody proceedings involving other jurisdictions (§ 3421, subd. (b)).
The Family Code provision implementing the UCCJEA is section 3421, subdivision (a). In re A.M. (2014) 224 Cal.App.4th 593 helpfully clarified and summarized the four interrelated scenarios of 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 (§§ 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 (§ 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 (§ 3421, subd. (a)(3)); or no other state has jurisdiction under the foregoing tests (§ 3421, subd. (a)(4))." (In re A.M., at p. 598.)
We define the relevant terms used in section 3421. "Initial determination" means the first child custody determination concerning a particular child. (§ 3402, subd. (h).) "Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child; the term includes a permanent, temporary, initial, and modification order. (Id., subd. (c).) "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; a period of temporary absence of any of the mentioned persons is part of the period. (Id., subd. (g).)
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 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. (§ 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; § 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 (Aiden L.) ["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 [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." (§ 3426, subd. (b).) If the other court declines to exercise its jurisdiction, the juvenile court has jurisdiction under the UCCJEA to proceed with hearing the dependency petition. (§ 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 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 [s]ection 3422 or that a court of this state would be a more convenient forum under [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." (§ 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].)
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.)
C. Analysis
Father claims the juvenile court lacked jurisdiction to make jurisdictional findings and dispositional orders regarding T.T. We agree.
Here, the record is replete with evidence that the Washington court made the "initial child custody determination" regarding T.T. (See § 3402, subds. (c) &(h).) As early as March 4, 2020 when DCFS filed a petition for T.T., DCFS received confirmation that the Washington court "has taken jurisdiction" and the California juvenile court dismissed the petition and indicated via minute order that the "Court finds the state of Washington is taking jurisdiction." The November 2, 2021 declaration of Washington CSW Jessica Kleckner provided, "Given that there was an existing parenting plan out of Washington State for an older child shared by the parents, a UCCJEA conference was held between the two jurisdictions and it was determined that Washington State was the proper forum." (Italics added.) The case was transferred into Washington Family Court and a parenting plan for T.T. was finalized on October 8, 2021 in Snohomish County Superior Court, granting joint parenting and shared custody between the parents.
Because the Washington court made an initial child custody determination, it obtained "exclusive, continuing subject matter jurisdiction over the child." (A.H., supra, 89 Cal.App.5th at p. 523.) Thus, the Washington court has exclusive, continuing jurisdiction until either the Washington court determined 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 [Washington] and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (§ 3422, subd. (a)(1)), or there is a judicial determination by either the Washington court 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 (§ 3422, subd. (a)(2)).
Here, the juvenile court was required under the UCCJEA to stay its proceeding, communicate and consult with the Washington court, and obtain additional information as necessary to make a determination. (L.C., supra, 90 Cal.App.5th at p. 737; § 3410, subd. (a); § 3426, subd. (b).) The juvenile court should have made a jurisdictional finding under the UCCJEA after conducting an evidentiary hearing, which it did not. Only if the Washington court had declined to exercise its jurisdiction, would the juvenile court here have had jurisdiction under the UCCJEA to proceed with hearing the dependency petition. (§ 3421, subd. (a)(2)-(3).) Here, there is no evidence that the juvenile court reached out to and consulted with the Washington court, and no evidence that the Washington court ceded jurisdiction to California.
DCFS argues California is T.T.'s home state because he "remained in California with [M]other from December 16, 2021, to August 4, 2022" except for a "temporary absence" from January 31, 2022 until March 6, 2022. DCFS argues T.T. lived in California with Mother for "over seven months before proceedings were commenced."
Father contends Washington is T.T.'s home state based on these facts. T.T. was born in Chewelah, Washington in February 2018 and lived in Washington until December 13, 2021, and from January 31, 2022 until March 6, 2022. He "spent well over half of his life with [Father] in Washington State." T.T. is enrolled in and attended preschool in Washington. T.T.'s primary medical care physician is Dr. Del Beccaro at Ballard Pediatrics in Washington, his dentist's office is in Washington, and he has not received medical or dental care in California. T.T.'s health insurance is based in Washington.
What constitutes a "temporary absence" is not defined in the UCCJEA. California Courts of Appeal have not uniformly adopted a test to determine when an absence is "temporary." One considered only the duration of an absence-almost 17 months-to conclude it would be a "stretch of imagination" to find such a long absence "temporary." (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 381.) Another looked only to the parents' intent to conclude the child's time outside California satisfied "any applicable standard" for" 'temporary absence,'" citing three out-of-state cases: two that focused on parental intent and a third that applied a totality of the circumstances approach. (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493, fn. 12 (Nurie).) Another cited Nurie and said courts must consider parents' intentions, "as well as other factors relating to the circumstances of the child's or family's departure," when determining whether an absence is temporary. (Aiden L., supra, 16 Cal.App.5th at p. 518.) The intent analysis focuses on the parents' intention at the time of departure, which may be informed by their behavior subsequent to that departure and remaining ties to the old state. (See Nurie, at p. 493, fn. 12 [assessing nature of absence based on circumstances when it began]; Aiden L., at p. 521 [analysis should consider reasons for leaving old state, plans upon arriving in new state, and familial and legal ties to the old state].)
Having conducted a de novo review and based on the totality of the circumstances, we find Father's argument meritorious.
First, the petition was filed on August 4, 2022, requiring T.T. to have resided in California since February 4, 2022 to qualify California as his home state. (§ 3402, subd. (g) ["Home state" means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding].) But T.T. was in Washington with Father from January 31, 2022 until March 6, 2022, as a result of Mother's arrest and incarceration for the January 29, 2022 domestic violence incident. There is no way T.T. could have resided with Mother while she was in jail. Substantial evidence supports the finding that Washington is T.T.'s home state to the extent the move to California began only as a "temporary absence" from Washington, where T.T. resided from his birth in February 2018 until March 6, 2022. DCFS cites no evidence that Father and T.T. went to California to live there moving forward; further, DCFS cites no substantial evidence of T.T.'s care, protection, training, and personal relationships in California, other than Mother and MGM, with whom DCFS did not recommend placing T.T. DCFS cites no evidence about T.T.'s schooling in California, his doctor or any other relevant connection to show California was intended as T.T.'s home state.
In contrast, T.T. was enrolled in and attended preschool in Washington, and continued attending throughout February and March 2022 until returning with Father to Los Angeles upon Mother's release from jail. T.T.'s primary doctor and dentist are in Washington and T.T.'s health insurance is based in Washington. T.T. lived most of his life in Washington with his sibling Tyson.
Father next argues the juvenile court lacked jurisdiction to modify the Washington custody order. DCFS acknowledges in its brief "that the juvenile court modified the Washington custody order by removing custody of [T.T.] from [M]other and [F]ather and that it did not have jurisdiction to modify the Washington custody order because it did not comply with section 3423."
As provided above, section 3423 has two requirements that must be satisfied before a California court may modify a child custody determination made by Washington. First, the California court must have jurisdiction to make an initial determination under section 3421, which we have already found was not satisfied here. Second, the Washington court must determine it no longer has exclusive, continuing jurisdiction under section 3422 or that a court of this state would be a more convenient forum under section 3427, or the Washington court or California court must determine that the child or the child parent's do not presently reside in Washington. (§ 3423.) Here, none of those determinations were made. The Washington court was never consulted and the California juvenile court determined Father presently resided in Washington. DCFS concedes the juvenile court's failure to comply with section 3423 was error.
Finally, we find the juvenile court's jurisdictional error prejudiced Father. Under the harmless error analysis, the juvenile court's error in failing to comply with the UCCJEA requirements was prejudicial only if "it is reasonably probable" that a different result would have been reached in absence of the error. (In re Marriage of Kent (2019) 35 Cal.App.5th 487, 496.) Here, there was a reasonable probability that had the Washington court been contacted, it would have determined it was a more convenient forum than California. T.T.'s sibling, Father, PGM, schooling, medical and dental care, and health insurance are all in Washington. The custody order regarding T.T. was issued in a Washington court. It is reasonable to believe that Washington maintaining its custody jurisdiction over T.T. could allow him to be placed with his brother there. Additionally, it is worth noting the last time DCFS filed a dependency petition on behalf of T.T., the juvenile court dismissed it because the Washington court "has taken jurisdiction." Under these circumstances, the record supports the conclusion that the Washington court would not have given up its exclusive, continuing jurisdiction over T.T., which renders the juvenile court's error in failing to comply with section 3423 prejudicial.
We reverse the jurisdictional findings and dispositional orders conditionally and remand the matter with instructions to comply with the UCCJEA procedures. (See, e.g., L.C., supra, 90 Cal.App.5th at p. 740; In re A.M., supra, 224 Cal.App.4th at pp. 599-600.)
DISPOSITION
The juvenile court's jurisdictional findings and dispositional 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 T.T. under the UCCJEA, the dispositional orders are to be reinstated. If the court determines that it does not have jurisdiction over T.T. under the UCCJEA, the court shall proceed as required by the UCCJEA, nullify the jurisdictional and dispositional findings and orders and, as necessary, prior orders.
We concur: WILEY, J. VIRAMONTES, J.