Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. CK76732
ORIGINAL PROCEEDING; Petitions for writs of mandate. Valerie Skeba, Referee. Petitions granted.
Richard E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Senior Deputy County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Petitioner and Real Party in Interest, Department of Children and Family Services.
Children’s Law Center, Sophia Ali and Lindsay Yoshiyama, for Petitioner Z.R.
No appearance for Respondent.
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen L. Bacon and Molly Walker, for Real Party in Interest C.V.
JOHNSON, J.
SUMMARY
Petitioner and Real Party in Interest the Department of Children and Family Services (DCFS) filed a petition in March 2009, under Welfare and Institutions Code section 300, after it received a referral that a 16-year-old child, petitioner Z.R., was pregnant, had a sexually transmitted disease and was engaged in an ongoing sexual relationship with a 28-year-old man. Evidence revealed that Z.R., a native of Mexico, moved away from her Mother’s home and came to the United States with her adult boyfriend when she was 14 years old, with the blessing of her mother, Real Party in Interest, C.V. (Mother). Mother knew Z.R. was pregnant. Mother did not recognize the existence of any problem with the sexual relationship between her minor daughter and the man. Mother also indicated she lacked the funds to provide for her daughter’s or the baby’s medical care if Z.R. was returned to her custody in Mexico.
The juvenile court exercised temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3421, et seq. (UCCJEA), and Z.R. was detained in foster care. However, at the adjudication hearing conducted four months later, the court determined it lacked subject matter jurisdiction and dismissed the petition. We conclude the juvenile court erred, and grant the petitions seeking vacation of the order dismissing the petition.
All undesignated statutory references are to the Family Code.
BACKGROUND
16-year-old Z.R. (born in December 1992) was detained by DCFS in mid-March 2009, after DCFS received a referral alleging Z.R. was the victim of sexual abuse by her 27-year-old boyfriend, J.A. (boyfriend), and neglect on the part of Mother.
Z.R., who was then three months pregnant, told the social worker she had come to the United States from Mexico a year before, and was living with her boyfriend, the father of her child. At the time, Z.R. was receiving prenatal care and treatment for a sexually transmitted disease (Chlamydia). Z.R., who denied being the victim of sexual abuse or domestic violence, claimed she came to the United States with her boyfriend voluntarily and left Mother’s home when she was 14, with Mother’s permission. Z.R. told the social worker that before coming to the United States, her boyfriend spoke with Mother, who agreed to let Z.R. leave with him. Z.R. and her boyfriend had planned to come to the United States for a year to earn some money, then return to Mexico to buy some land, start a business and get married. They had not earned as much money as they had expected, so they were staying another year. Z.R. has a brother living in Florida, but no family members in Los Angeles, where she lived with her boyfriend. She and he each worked in garment factories. Z.R.’s wages were paid in cash, and her employer did not know her age. Mother lives in Mexico with Z.R.’s 14-year-old brother. Z.R. does not know who her father is, but knows he lives somewhere in Mexico. Z.R. was temporarily detained in foster care.
DCFS contacted Mother in Mexico. Mother (who did not know her address, and was unable to recall her own date of birth), told the social worker she had raised her children alone. She also told DCFS (falsely) that Z.R.’s father was deceased. Mother met Z.R.’s boyfriend two or three times before she allowed Z.R. to leave with him. Mother gave Z.R. permission to leave “because there was not much for [sic] child in her town.” Z.R. had worked in Tijuana for about a year before going to the United States. Mother knew Z.R. planned to live with her boyfriend in the United States. Mother has very few resources. She earns a living selling bread and other things she cooks to people on the street. Z.R. sent money to supplement Mother’s income. Mother, who knew Z.R. was pregnant, said she “want[ed her daughter] in [her] home town,” and wanted her sent back to avoid being placed in foster care. However, Mother was unable to come to the United States to get Z.R. because Mother is undocumented and lacks funds to travel. DCFS had great difficulty in its attempts to reach Mother by telephone and, when it was finally able to do so, Mother told the social worker she could not afford the cost of taking the agency’s calls.
On March 30, 2009, DCFS filed a petition under Welfare and Institutions Code section 300. It alleged Z.R. had been subjected to ongoing sexual abuse by an unrelated male since she was 14 years old, resulting in the child’s pregnancy, and that Mother was aware of the abuse but failed to take action to protect Z.R., and had allowed her child to reside with the unrelated male in the United States. The petition also alleged that Mother failed to provide Z.R. with the necessities of life, including food, shelter, clothing and medical care.
At the detention hearing on March 30, 2009, the juvenile court found DCFS had made a prima facie showing that Z.R. was a child described by Welfare and Institutions Code section 300, subdivisions (b), (d) and (g), and ordered her temporarily detained in shelter care. The court also ordered DCFS to investigate release of Z.R. to Mother in Mexico, and to initiate a DIF investigation of Mother in Mexico, and continued the matter to April 29, 2009, for a jurisdictional hearing.
DIF is the commonly used acronym for Mexico’s counterpart to DCFS, the Mexican protective services agency, Sistema Nacional Para El Desarollo Integral de la Familia.
DCFS interviewed Z.R. and Mother in preparation for the April 29 hearing. Z.R. informed DCFS her sexual relationship with her boyfriend was and always had been “mutual.” She had dated him between the ages of 11 and 14 in Mexico without Mother’s knowledge or consent. Z.R. said Mother had not been happy about Z.R.’s decision to leave Mexico, but felt Z.R. might find a better life in the United States. Z.R. refused to provide any identifying information about her boyfriend, and told the social worker she believed he had gone back to Mexico. Z.R. denied that Mother had failed to provide for her, and said she had never needed anything when she lived with Mother.
When interviewed regarding the allegations of the petition, Mother told DCFS she had not given Z.R. permission to leave, and had tried to convince her to stay. But, Z.R. told Mother she was in love and wanted to spend her life with her boyfriend. Once Mother “found out [Z.R.] was leaving [Mother] simply gave them both [her] blessing.” Mother knew Z.R. was pregnant, and knew she and her boyfriend planned to marry. Mother told the social worker she did not understand why Z.R. could not stay in the United States with her boyfriend. Even after the social worker explained the issues related to the legal age of consent and the boyfriend’s age, Mother still “[didn’t] see what the problem [was].” Mother said Z.R. could come back whenever she chose. As for her ability to provide for Z.R., Mother told DCFS she “struggle[s] every day and live[s] a very modest life,” but that she works hard to be sure her children have what they need. She conceded that both Z.R. and her son in Florida send money so their younger brother can continue his education. As for Mother’s ability to provide for the medical care and needs for Z.R. and her unborn child, Mother told DCFS she did not have any money, but the Mexican government could help. Also, Mother, who lives in a rural region, said Z.R. would have to travel to town to deliver the baby and to receive medical care. Z.R. had told Mother she wanted to stay in the United States to continue receiving prenatal care and care for her infection during the child’s birth.
DCFS also spoke with Z.R.’s brother in Miami, and her sister in Mexico. The brother did not have an address for Mother, but confirmed that he wired money to a bank to help Mother and his younger brother meet their daily needs. The brother told DCFS that neither his Mother nor his father (who was not deceased but whose whereabouts were unknown) had ever resided in or visited the United States. The brother was interested in assisting Z.R. if she remained in the United States. Z.R.’s sister in Mexico also confirmed that the father of Mother’s children was alive, but was also unable to provide an address for him or for Mother.
In mid-April, DCFS contacted the Mexican consulate, which requested that DCFS provide all records and vital information, and send a letter formally requesting DIF’s assistance to conduct a social study on the family. Once the consulate received that information, including detailed information regarding the child’s parents, their addresses, employment information, birthdates and contact information for the family, it would ask the child protection authorities in Chiapas to conduct a family social study, a process that could take up to three-weeks. On April 29, the juvenile court continued the jurisdictional hearing to May 13, 2009, so a representative of the Mexican Consulate could attend that hearing.
On May 13, 2009, DCFS reported that its continued efforts to locate Z.R.’s parents had been unsuccessful. At the hearing on May 13, the juvenile court and counsel conducted a conference with a representative of the Mexican Consulate, and DCFS was ordered (again) to request a DIF investigation of Mother in Mexico, and to “work with the Mexican Consulate to facilitate [Z.R.] returning to Mexico.” The matter was continued to May 27, 2009.
On May 27, 2009, the juvenile court continued the hearing to June 25, and ordered the parties to submit briefs “addressing the issue of why the court should take jurisdiction over a minor who is not a U.S. citizen.” Counsel for DCFS and Z.R. submitted their points and authorities on June 23, and June 26, 2009, respectively, arguing that the juvenile court could and should assert subject matter jurisdiction in this matter. In connection with the June 25, 2009 hearing, DCFS reported it was still searching for Z.R.’s parents. DCFS also reported that, on May 21, it had contacted the Mexican Consulate to request that a DIF investigation of Mother be initiated and that a foster home in Mexico be located, in the event Mother was unable to reunify with Z.R. On May 28, the Consulate informed DCFS it had requested that the foreign affairs office in Chiapas, Mexico locate Mother, and would advise DCFS of the results of that investigation “in due course.”
On June 25 the juvenile court continued the jurisdictional hearing to June 29, 2009, for receipt of an updated report from the Mexican Consulate addressing the DIF evaluation of Mother’s home and the services available to Z.R. in Mexico. In its report filed in connection with the July 25 hearing, DCFS informed the court that it was unable to recommend that Z.R. be returned to Mother’s care and custody. DCFS was unable to assure the safety of Z.R. with Mother, who had disclosed an inability to provide medical care or financial assistance for her pregnant daughter. DCFS persisted in its effort to initiate a DIF investigation of Mother in Mexico.
The jurisdictional hearing was conducted on July 29, 2009. In its report, DCFS remained steadfast in its recommendation that Z.R. not be returned to Mother’s care and custody. DCFS noted the Mexican Consulate was working with authorities in Chiapas to obtain a socio-economic report on Mother, who was very hard to reach. Following argument by counsel for DCFS, Z.R. and Mother, the juvenile court found it lacked subject matter jurisdiction under the UCCJEA, ordered that Z.R. be returned to Mother’s home in Mexico, and dismissed the petition. The order was stayed for seven days to permit appellate review.
DISCUSSION
DCFS and Z.R. (collectively, Petitioners) contend the juvenile court erred when it found it lacked subject matter jurisdiction in this action and dismissed the petition. We agree. We conclude the juvenile court had subject matter jurisdiction under section 3421, subdivision (a)(4) of the UCCJEA and that the court’s temporary jurisdiction also ripened into permanent jurisdiction under section 3422, subdivision (b).
1. The UCCJEA
The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions. (In re C.T. (2002) 100 Cal.App.4th 101, 106 (C.T.).) A dependency action is a “child custody proceeding” subject to the UCCJEA. (§ 3402, subd. (d); In re Angel L. (2008) 159 Cal.App.4th 1127, 1136 (Angel).) It applies to international custody disputes (see In re Stephanie M. (1994) 7 Cal.4th 295, 310 (Stephanie)); foreign countries are treated as states under the Act for purposes of determining jurisdiction. (§ 3405, subd. (a); In re A.C. (2005) 130 Cal.App.4th 854, 860 (A.C.).) The purpose of the UCCJEA, in the context of dependency proceedings, is to promote stability for children by avoiding jurisdictional conflicts, promoting cooperation with courts of other states in child custody proceedings, litigating custody matters in fora where children and their families are most closely connected, avoiding relitigating custody decisions made in other states, and promoting the exchange of information and mutual assistance among the courts of various states. (C.T., supra, 100 Cal.App.4th at p. 106.)
A juvenile court’s findings regarding the presence or absence of subject matter jurisdiction do not bind us. In determining whether subject matter jurisdiction exists, an appellate court independently reweighs the jurisdictional facts. (Angel, supra,159 Cal.App.4th at p. 1136; In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348.) Subject matter jurisdiction either exists or does not exist at the time a dependency action is commenced; it cannot be conferred by stipulation, consent, waiver or estoppel. (A.C., supra,130 Cal.App.4th at p. 860.)
The parties do not dispute that the juvenile court properly exercised emergency jurisdiction under the UCCJEA. Rather, the dispute centers on the issue of whether the juvenile court had permanent jurisdiction at the time of the jurisdictional hearing or, in the alternative, whether its emergency jurisdiction had ripened into permanent subject matter jurisdiction. We conclude the juvenile court had and erred by failing to exercise, subject matter jurisdiction gained by virtue of section 3421, subdivision (a)(4). Alternatively, because the risks of harm to Z.R. were ongoing, the juvenile court’s emergency jurisdiction had also ripened into permanent jurisdiction. We turn first to the issue of general subject matter jurisdiction under the UCCJEA, and then address the circumstances under which emergency jurisdiction may ripen into permanent jurisdiction.
Mother does not expressly concede that emergency jurisdiction was properly exercised. That concession, however, is implicit in her legal argument which is premised on the claim that the court’s exertion of emergency jurisdiction did not ripen into permanent subject matter jurisdiction.
2. Overview of the UCCJEA and its application here
Section 3421 provides four bases under which California has jurisdiction to make an initial child custody determination. (§ 3421, subd. (a).) Section 3421 confers jurisdiction on the California juvenile court “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.
“(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).” DCFS contends the juvenile court has, and erred by failing to exercise, jurisdiction under sections 3421, subdivisions (a)(2) and (a)(4). Z.R. asserts the court has jurisdiction under section 3421, subdivision (a)(4). Petitioners agree that Mexico lacks jurisdiction under any provision of section 3421.
a. Home state jurisdiction
Under section 3421, subdivision (a)(1), neither California nor Mexico may be considered Z.R.’s home state. A state is a child’s “home state” only if the child has lived in that state with a parent, or a person acting as one, for at least six consecutive months immediately prior to the commencement of the proceedings. (§ 3402, subd. (g).) Mother has never lived in California. Although Z.R. was in California for more than six months prior to the initiation of these proceedings, she was here without a parent or a person acting as a parent. Thus, section 3421, subdivision (a)(1) did not confer home state jurisdiction on the California court.
A “‘[p]erson acting as a parent’ means a person, other than a parent, who: (1) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (2) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.” (§ 3402, subd. (m).) “‘Physical custody’ means the physical care and supervision of a child.” (§ 3402, subd. (n).)
Nor is Mexico Z.R.’s home state. Mexico was not Z.R.’s home state either when this dependency matter commenced, nor six months prior to its commencement. Z.R. left Mother’s home more than two years ago, and moved to Tijuana. She has been residing in the United States for more than a year. Z.R. was not living with Mother during the six months immediately prior to the initiation of this action. Mother asserts that Z.R.’s presence in California was no more than a “temporary absence” from Mexico. We reject that claim. The record does contain some evidence that Z.R. left Mexico with a “plan” to return with her boyfriend within a year. But, notwithstanding that plan, Z.R. remained in California long past her initial intended time frame, and had no firm date set for her return. In addition, she and her boyfriend obtained both housing and long-term jobs here. Although there is no indication that Z.R. came to California for medical care, this is where she became pregnant, and it was here that she wished to stay to obtain prenatal care, and medical care for her infection and her child’s safe delivery. Moreover, when interviewed by DCFS prior to her detention, Z.R. told the social worker she lives in the United States with her 27-year-old boyfriend and has been with him since they left Mexico about two years ago.
This evidence indicates that whatever Z.R.’s initial plan, her presence in California has long since ceased to be temporary. In re S.W. (2007) 148 Cal.App.4th 1501 is instructive here. There, a parent claimed that because she had moved to California from Nebraska to which she planned to return, California was not her children’s home state. The court found differently. The mother and her children had been at their residence in California for several months, and had been “living” in their van as opposed to “visiting.” (Id. at pp. 1509–1510.) All the evidence suggested that mother and her children were living in California, and not that mother’s “visit” was temporary in any respect: the mother came to California with her boyfriend and remained here, passing up opportunities to leave, and she applied for welfare in California. (Ibid.) The situation here is quite similar. Even if Z.R. initially planned to return to Mexico when she left at 14, that plan changed over time, and she and her boyfriend have clearly made an effort to establish in California, the “better life” Mother hoped they would find together here.
This matter is also easily distinguished from In re A.C., supra,130 Cal.App.4th 854, the case on which the juvenile court relied in concluding it lacked jurisdiction. In A.C., Mexican parents sent their child, who had always lived in Mexico with her parents, to San Diego solely for the purpose of hospitalization and to receive medical treatment for severe injuries suffered in a car accident. (Id. at p. 862.) The only time the child was in California were the periods during which she was hospitalized here, either at her family’s request, or because she needed medical care unavailable at her home in Tijuana. (Id. at pp. 857–858.) The court found Mexico to be the child’s home state. (Id. at p. 862.) In stark contrast to the facts of A.C., Z.R. did not come to California solely for the medical care she now desires, and did not require it when she arrived. She came here to live with her adult boyfriend, with the intention to earn money to buy a business, land and to get married. Z.R. had also been living independently from her Mother for over two years, and had clearly established a life for herself in California long before she was detained. Unlike A.C., Z.R.’s absence from Mexico cannot reasonably be characterized as a temporary absence from her home state.
b. No “significant connection” jurisdiction under section 3421, subdivision (a)(2)
Neither California nor Mexico has what has been deemed “significant connection” jurisdiction. California would have such jurisdiction only if there is no home state or the home state has declined to exercise its jurisdiction on the grounds that California courts provide a more appropriate forum. (§ 3421, subd. (a)(2).) Even if either of these conditions exists, California has significant connection jurisdiction only if Z.R. and at least one of her parents have a significant connection with California apart from mere physical presence and there is substantial evidence available in this state concerning Z.R.’s care, protection, training, and personal relationships. (§ 3421, subd. (a)(2)(A), (B).) Since Mother has no significant relationship with California, the juvenile court lacks jurisdiction under section 3421, subdivision (a)(2).
DCFS contends California has significant connection jurisdiction because it has had physical custody of Z.R. and has “acted as” her parent since her detention in March 2009. However, DCFS had to have maintained this capacity for at least six consecutive months prior to the commencement of this action to qualify for this status. (See § 3402, subd. (m).)
For Mexico to have jurisdiction under section 3421, subdivision (a)(2), one of the following must obtain: Either there is no other state that would have jurisdiction as Z.R.’s home state under 3421, subdivision(a)(1), or a court of Z.R.’s home state has declined to exercise jurisdiction on the grounds that Mexico is the more appropriate forum, and (A) Z.R. and at least one of her parents have a significant connection with Mexico beyond a mere physical presence, and (B) there is substantial evidence available in Mexico concerning Z.R.’s care, protection, training, and personal relationships. (§3421, subd. (a)(2)(A), (B).) The requirements of section 3421, subdivision (a)(2) are not satisfied as to Mexico. Z.R. has not lived in Mexico for over a year, and has not lived with Mother for over two years. She has built a new life for herself in California, and lacks significant connection with Mexico.
c. No other court has declined jurisdiction under section 3421, subdivision (a)(3)
No other state has declined to exercise jurisdiction on the grounds that Mexico was a more appropriate forum to litigate this dependency matter. (§ 3421, subd. (a)(3).) Although the juvenile court here declined to exercise subject matter jurisdiction, its decision was not premised on a finding that Mexico was a more appropriate forum in which to litigate. Rather, the juvenile court merely stated that Z.R., a Mexican citizen illegally present in the United States, is the responsibility of Mexico.
We do not address the parties’ arguments regarding Z.R.’s ability as an undocumented child to obtain residency in the United States under the Special Immigrant Juvenile Status (SIJS), Title 8 United States Code section 1101(a)(27)(J). This statute does not provide a ground for our decision. The issue before us is whether the juvenile court had subject matter jurisdiction, not whether Z.R. may lawfully obtain immigrant status through the SIJS. Nevertheless, we note that the juvenile court erred in refusing to assume jurisdiction in this action because Z.R. is present in the United States illegally.
There is also no merit to Mother’s assertion that California may only assert jurisdiction under section 3421, subdivisions (a)(3) or (a)(4) once Mexico declines jurisdiction, which it has not yet done. This argument would only be correct if Mexico were Z.R.’s home state with subject matter jurisdiction over this action. It is not. Moreover, this argument was rejected in S.W., supra, 148 Cal.App.4th 1501. In S.W., just as Mother claims here, the mother argued jurisdiction could not be established in California under section 3421 because there was no showing Nebraska had declined to assert jurisdiction over her children. (Id. at p. 1510.) The appellate court dismissed that assertion observing that “because the facts demonstrate[d] that Nebraska is not the home state of [the mother] and her children, the provisions regarding when a home state has declined jurisdiction have no application.” (Ibid.)
d. The juvenile court had jurisdiction under section 3421, subdivision (a)(4) because no other court had jurisdiction
Under section 3421, subdivision (a)(4), a court of this state has jurisdiction if “[n]o court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).” Neither California nor any other state (or foreign country) may be considered Z.R.’s home state, and no other state (or foreign country) has declined jurisdiction. (§ 3421, subds. (a)(1), (a)(3).) In addition, neither Mexico nor California satisfies the requirements for significant connection jurisdiction under section 3421, subdivision (a)(2). Thus, the juvenile court had jurisdiction to make an initial custody determination because no court of any state (or foreign country) would have jurisdiction under the criteria specified in section 3421, subdivisions (a)(1) through (a)(3). (§ 3421, subd. (a)(4).) Accordingly, the juvenile court erred when it found it lacked such jurisdiction.
3. Temporary emergency jurisdiction under UCCJEA
Section 3424 provides an exception to the exclusive jurisdictional bases for making a child custody determination in California. Under the UCCJEA, a court may exercise “temporary emergency jurisdiction if the child is present in the state and... it is necessary in an emergency to protect the child because the child is subjected to, or threatened with, mistreatment or abuse.” (§ 3424, subd. (a); A. C., supra, 130 Cal.App.4th at p. 863.) An “emergency” exists if there is an immediate risk of danger to the child if he or she is returned to a parent. (In re Nada (2001) 89 Cal.App.4th 1166, 1174 (Nada R.). Emergencies under UCCJEA generally arise in cases of sexual or physical abuse. (See C. T., supra, 100 Cal.App.4th at p. 109; Nada R., supra,89 Cal.App.4th at p. 1174.) Section 3424 governs the circumstances under which a juvenile court has and may continue to exercise temporary emergency jurisdiction.
Emergency jurisdiction is reserved for extraordinary circumstances. Section 3424, subdivision (a) makes clear that emergency jurisdiction may be exercised to protect a child only on a temporary basis until a court with appropriate jurisdiction issues a permanent order. Although “emergency jurisdiction ordinarily is intended to be short term and limited, the juvenile court may continue to exercise its authority as long as the risk of harm creating the emergency is ongoing.” (Angel, supra, 159 Cal.App.4th at p. 1139.) A state’s exercise of emergency jurisdiction will remain in effect until an order is obtained from a state with jurisdiction under sections 3421 to 3423, and so long as there is no previous child custody determination from another state and that state does not commence a child custody proceeding. (§ 3424, subd. (b).) If the other state does not commence a child custody proceeding, this state’s exercise of temporary jurisdiction becomes a final determination of custody, and this state becomes the child’s home state. (§ 3424, subd. (b).)
The statutory scheme reflects “the Legislature’s intent to afford all children found in California the protection of California’s juvenile court in exigent circumstances.... ‘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. [Citation.]” (Angel, supra,159 Cal.App.4th at p. 1138.) In addition, the Legislature has expressly declared its intent to expand the grounds on which a court may exercise temporary emergency jurisdiction. (§ 3424, subd. (e).)
There is no serious dispute that the requirements of section 3424, subdivision (a) were satisfied here. The juvenile court’s invocation of temporary emergency jurisdiction on the ground that Z.R. was at imminent risk of serious physical harm or illness, “necessarily included a finding under the [UCCJEA] that an emergency existed and it was necessary to protect [Z.R.] from actual or threatened mistreatment or abuse.” (C.T., supra, 100 Cal.App.4th at p. 109, fn. omitted.) The court also found DCFS had made a prima facie showing that Mother had failed to provide Z.R. the necessities of life.
Z.R. was detained because she was the victim of statutory rape, because Mother was unable to protect Z.R. even though she knew of the ongoing sexual abuse, resultant pregnancy, and that her daughter had contracted a sexually transmitted disease. Mother permitted 14-year-old Z.R. to leave the country to live with the adult perpetrator with her “blessing.” Moreover, Mother did not understand why Z.R. could not be permitted to remain with the perpetrator of the abuse in the United States, even after the illegality of the relationship was explained to her. In addition, from the time Z.R. left her Mother, Mother has failed to provide Z.R. with the necessities of life. Instead, Mother relied on Z.R. to send Mother money from Z.R.’s cash-based garment factory job, to help subsidize Z.R.’s younger brother’s education. Clearly, the juvenile court’s initial assumption of emergency jurisdiction was justified on the basis of Mother’s failure to: (1) protect Z.R. from sexual abuse, when she allowed Z.R. to leave home and live with a man who was eleven years older (Welf. & Inst. Code, § 300, subds. ((b), (d)); (2) protect her daughter from continued sexual abuse after learning of the pregnancy by the adult boyfriend (Wel. & Inst. Code, § 300, subd. (d)); and (3) provide for her minor daughter for the past two years, while she lived first in Tijuana and then in the United States (Wel. & Inst. Code, § 300, subds. (b), (g).) The juvenile court properly exercised its emergency jurisdiction under section 3424 because Z.R. was present in California when the sexual abuse was disclosed, and the court’s action was necessary to protect Z.R. from immediate harm. (Nada R., supra, 89 Cal.App.4th at p. 1174 [other than “the necessity of protecting a child from immediate harm, presence of the child in the state is the only prerequisite” for assuming emergency jurisdiction].)
4. The court’s emergency jurisdiction ripened into permanent jurisdiction
Even an appropriate “[a]ssumption of emergency jurisdiction does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody disposition.” (C. T., supra, 100 Cal.App.4th at p. 108.) Thus, the question before us is was the exercise of continued emergency jurisdiction justified at the time the jurisdictional hearing was conducted, or whether that emergency jurisdiction ripened into permanent jurisdiction? On this record, we conclude the risk of harm creating the emergency persisted at the time of the jurisdictional hearing. The juvenile court properly should have continued to exercise jurisdiction for the immediate and indefinite future. (See Nada, supra, 89 Cal.App.4th at pp. 1174–1175 [“emergency” exists when a child is in immediate risk of danger if he or she is returned to his or her parent; jurisdiction is intended to be short term, but court may continue to exercise authority so long as underlying reasons persist]; Angel, supra, 159 Cal.App.4th at p. 1139; Stephanie, supra, 7 Cal.4th at p. 312 [court had continuing jurisdiction because emergency persisted and it was impossible immediately to return child to her parents].)
The evidence at the jurisdictional hearing showed that Z.R. remained at risk of abuse if returned to Mother’s custody. Again, Z.R. was detained because she was the victim of statutory rape. Mother did not protect her daughter from ongoing sexual abuse. Mother admitted that when Z.R. told her she wanted to leave Mexico to live with her then 25-year-old boyfriend, she gave the couple her “blessing” and made no effort to stop her. Even after DCFS explained to Mother that Z.R. was engaged in an unlawful sexual relationship with her adult boyfriend, Mother still saw no problem, and did not understand why Z.R. could not remain in what is, by definition, an unlawful and abusive sexual relationship. Mother does not understand the severity of the sexual abuse allegations, and does not see any danger to her daughter by virtue of her sexual relationship with an adult boyfriend. Nothing in the record leads us to believe that, if Z.R. is returned to Mother’s care in Mexico, she will protect Z.R. from engaging in another similarly abusive sexual relationship.
It is not inconceivable that, if Z.R. is returned to her care, Mother may allow her to return to that relationship. Z.R.’s boyfriend vanished as soon as Z.R. became involved with DCFS in March 2009, and has not been seen or heard from since. He is believed to have fled to Mexico, and has never seen the baby to whom Z.R. presumably gave birth in September 2009.
In addition, there is an ongoing risk that Mother cannot provide Z.R. with some life necessities, including the medical care and treatment needed both by Z.R. and the newborn for whom Z.R. has presumably become the primary caretaker. Mother has not provided for her daughter, at least since Z.R. was 14 years old. To the contrary, Mother has relied on Z.R.’s financial assistance to help her and Z.R.’s brother get by. Now, instead of one additional person to house and one more mouth to feed, there are two. In addition, Z.R., who has a sexually transmitted disease (for which medical care may not even be available near Mother’s rural home), and her child will have ongoing medical needs which Mother unfortunately cannot afford.
Z.R.’s estimated delivery date was September 27, 2009.
The risks of harm that gave rise to the initial emergency have not been ameliorated. They persist and, as a result, so does the juvenile court’s ability to exercise emergency jurisdiction. Although the court’s assumption of emergency jurisdiction is only an assumption of temporary jurisdiction, the juvenile court may continue to exercise jurisdiction when the risk of harm that gave rise to the emergency persists and prevents the child from being returned to his or her parent. (Nada R., supra, 89 Cal.App.4th at p. 1175; see also In re Jorge G. (2008) 164 Cal.App.4th 125, 131–133 [wherein we concluded that juvenile court had temporary subject matter jurisdiction where both of [Mexican national] child’s parents were incarcerated in Mexico, and child had no relatives available in Mexico or Los Angeles to care for him].) As the risk of harm creating the emergency was ongoing, and Z.R. could not be safely and immediately returned to Mother, the juvenile court retained jurisdiction under section 3424 to conduct the proceeding, and to issue jurisdictional and dispositional orders. (Nada R., supra, 89 Cal.App.4th at p. 1175; Angel, supra, 159 Cal.App.4th at p. 1139; Stephanie, supra, 7 Cal.4th at p. 312.)
There was no jurisdictional conflict with another state’s court: the UCCJEA did not restrict the court’s power to proceed. (§ 3424, subds. (c), (d); cf., C.T., supra, 100 Cal.App.4th at pp. 112–114 [because court in sister state with jurisdiction was willing to address custody issue, California court’s exercise of temporary emergency jurisdiction was limited to specific duration].) Here, there is no prior child custody determination from another court enforceable under the UCCJEA as to Z.R. (§ 3424, subd. (b).) Absent such an action, the California juvenile court properly had jurisdiction to continue to act in this matter. (Angel, supra, 159 Cal.App.4th at pp. 1139–1140.) Moreover, apart from its proper and continued exercise of temporary jurisdiction, the court had an independent basis on which to exercise subject matter jurisdiction under section 3421, subdivision (a)(4.)
5. There are no jurisdictional findings subject to appellate review
Petitioners urge us to find the record lacks substantial evidence to support the juvenile court’s finding that Z.R. is not a child described by Welfare and Institutions Code section 300, subdivisions (b), (d) and (g). We are unable to do so. Petitioners’ argument founders on the pivotal fact that the juvenile court never made jurisdictional findings on the allegations. The petition was dismissed prior to that point, after the court found it lacked jurisdiction under the UCCJEA. In dismissing the action, the court made clear that it was not reaching the merits of the petition. The appropriate remedy is to grant the petitions, order the juvenile court to retain jurisdiction and remand the matter for an adjudication hearing on the merits of the petition.
DISPOSITION
The petitions for writ of mandate of Z.R. and DCFS are granted. The juvenile court’s July 29, 2009 order dismissing the Welfare and Institutions Code section 300 petition is vacated. The matter is remanded to that court with directions to re-detain Z.R., and to conduct an adjudication hearing on the merits of the Welfare and Institutions Code section 300 petition.
I concur: MALLANO. P. J.
ROTHSCHILD, J., Dissenting.
Petitioners ask us to grant extraordinary relief ordering the juvenile court to assume subject matter jurisdiction over a petition to declare Z.R., a 16-year-old Mexican national, a dependent child of the court. Unlike the majority, I find no error in the lower court’s conclusion that it lacked jurisdiction over the matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
I. STANDARD OF REVIEW
The majority states that “[i]n determining whether subject matter jurisdiction exists, an appellate court independently reweighs the jurisdictional facts.” (Maj. opn. ante, at p. 8, italics added.) I disagree.
This unique standard of review first appeared as dictum in In re Marriage of Fox (1986) 180 Cal.App.3d 862, a case in which the court reversed for lack of substantial evidence the trial court’s finding that Louisiana had jurisdiction over the parties’ child custody dispute under the UCCJA, the predecessor of the UCCJEA. (Id. at p. 867.) The court set forth the standard of review in UCCJA cases as follows: “A trial court’s finding of California jurisdiction under U.C.C.J.A. is subject to a substantial evidence standard of review. [Citation.]... [¶] On the other hand a finding of no California jurisdiction based on uncontroverted facts is reviewed under an abuse of discretion standard of review. [Citation.] Rulings that jurisdiction is absent based on a court’s resolution of conflicting evidence should be reviewed under a substantial evidence standard. [Citation.]” (Id. at p. 870.) The court then observed that “[s]ince an adjudication under the U.C.C.J.A. requires subject matter jurisdiction, the Court of Appeal is not bound by the trial court’s findings and may independently reweigh the jurisdictional facts. (See Clark v. Superior Court [(1977)] 73 Cal.App.3d 298.)” (In re Marriage of Fox, supra,180 Cal.App.3d at p. 870.)
Several California cases addressing jurisdiction under the UCCJEA have repeated Fox’s statement that appellate courts may “reweigh the jurisdictional facts” (see e.g., In re Angel L. (2008) 159 Cal.App.4th 1127, 1136) but neither Fox nor any of the cases that have repeated this statement explain the reason for supplanting the traditional rule that appellate courts “do not reweigh the evidence.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465; italics added.) Fox’s “reweighing of the evidence” standard of review has not been followed in any other jurisdiction.
In reMarriage of Fox does not provide an explanation for this exceptional standard of review. It cites Clark v. Superior Court (1977) 73 Cal.App.3d 298 as its authority for the proposition that appellate courts “independently reweigh” the jurisdictional facts but Clark contains no such statement and the court in Clark conducted no such reweighing of the facts. In Clark, the issue was whether, under the UCCJA, Oregon or California had jurisdiction over a custody dispute between the parents of a minor child, Tanya. The facts were uncontested. (Id. at p. 302.) The court concluded that the dispute should be heard in Oregon because “the record in this case demonstrates that the state with which Tanya and her family have the closest connection, and where significant evidence concerning her care, protection, training and personal relationship is most readily available is Oregon....” (Id. at p. 308.)
Further, the Fox court’s comment about reweighing the evidence is dictum because the Fox court itself did not reweigh the evidence in reversing the trial court’s finding of Louisiana jurisdiction. Rather, the court applied the traditional substantial evidence test and found that “there is not substantial evidence to support the finding of Louisiana jurisdiction[.]” (In re Marriage of Fox, supra,180 Cal.App.3d at p. 867.)
I see no reason for replacing the traditional substantial evidence test. Therefore, when subject matter jurisdiction under the UCCJEA turns on the resolution of conflicting evidence, as it does in the case before us, the applicable standard of review is the usual substantial evidence test. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954; In re Janette H. (1987) 196 Cal.App.3d 1421, 1427; In re Marriage of Fox, supra,180 Cal.App.3d at pp. 867, 871, 872, 873.) For the reasons explained below, substantial evidence supports the trial court’s finding that California lacks subject matter jurisdiction.
II. HOME STATE JURISDICTION
A California court has jurisdiction to make an initial child custody determination only if the party seeking to establish jurisdiction shows by a preponderance of the evidence that one of the jurisdictional bases of Family Code section 3421 applies. (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 599.)
All statutory references are to the Family Code.
Section 3421, subdivision (a), states in relevant part: “[A] court of this state has jurisdiction to make an initial child custody determination... [if]: (1) This state is the home state of the child on the date of the commencement of the proceedings, or... (2) A court of another state does not have jurisdiction under paragraph (1)....” Thus under subdivision (a)(2), if Mexico is the home state of the child on the date of commencement of the proceedings then Mexican courts have jurisdiction over matters affecting the custody of Z.R. and California courts do not have jurisdiction under subdivision (a)(1).
Section 3402, subdivision (g) defines “‘home state’” as “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 determining whether the child has lived with a parent for at least six consecutive months, “[a] period of temporary absence of any of the mentioned persons is part of the period.” (Ibid.)
It is undisputed that 16-year-old Z.R. lived in California for approximately a year before the DCFS placed her in a foster home. But it is also undisputed that before she came to California Z.R. lived the first 14 years of her life with her mother in Chiapas, Mexico. The trial court impliedly found that Z.R.’s period of living in California was a temporary absence which did not interrupt her residency in Mexico. This finding, if backed by substantial evidence, supports the court’s finding that Mexico, not California, has jurisdiction over the custody of Z.R. (Cf. In re A.C. (2005) 130 Cal.App.4th 854, discussed in fn. 3, below.)
Although the trial court did not explicitly find that Z.R. was absent from her mother’s home in Mexico on a temporary basis, the court’s reference to In re A.C., supra, 130 Cal.App.4th 854 as “the case that is most on point,” implies the finding that it was her home state. In In re A.C., the court held that due to the temporary absence provision of section 3402, subdivision (g), California was not the home state of a minor who was absent from his parent’s home in Mexico solely for hospitalization and medical treatment. (Id. at p. 862.)
The UCCJEA does not define the term “temporary absence.” California courts have not articulated a governing rule for determining when an absence from a state is temporary but have generally decided each case based on the totality of the circumstances. (See, e.g. In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 381 [where child had only lived in New York for a few months, absence from New York for 17 months was not a temporary absence]; In re A.C., supra,130 Cal.App.4th at p. 862 [absence from Mexico for medical treatment is a temporary absence]; In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 894 [short trips out of state with mother during the summer “were mere temporary absences”].)
I conclude that there is ample evidence to support the juvenile court’s finding that Z.R.’s absence from her home in Mexico was temporary and therefore Mexico was Z.R.’s home state when DCFS filed its dependency petition.
The most telling evidence supporting the finding is Z.R.’s statement to the DCFS worker that her “idea was to come over, earn some money, and go back to create a small business and buy some land in Mexico and get married.” Z.R. also told the worker that although she originally intended to stay in California only for a year she decided to stay another year because she had not been able to save as much money as she expected to complete her goal. Z.R.’s absence from Mexico for the purpose of earning money to start a business upon her return is analogous to absences from a person’s home state for purposes of business or education which have been held to be temporary absences for purposes of the UCCJEA’s home state determination. (Lemley v. Miller (Tex.App.1996) 932 S.W.2d 284, 287 [mother’s and child’s absence from state due to stepfather’s military service was temporary absence]; Shepard v. Lopez-Barcenas (Or.App. 2005) 116 P.3d 254, 255 [mother’s and child’s absence from Mexico so mother could obtain college degree in Oregon was temporary absence].) As additional evidence supporting the finding, the record shows that Z.R. lived 14 of her 16 years with her mother in Mexico, that she and her mother remained in close contact while Z.R. was in California, and that her mother, who still lives in the same town in Mexico, wants Z.R. and the baby to return to live with her. Finally, the record contains no evidence that Z.R. took any steps to secure lawful permanent residency in the United States.
As proof that Z.R.’s absence from Mexico was not temporary the majority cites evidence that Z.R. and her boyfriend “obtained both housing and long-term jobs here” and that Z.R. “wished to stay [in California] to obtain prenatal care, and medical care for her infection and her child’s safe delivery.” (Maj. opn. ante, at p. 10.) This evidence does not support the majority’s finding. Obtaining shelter is not evidence of an intent to remain in a place permanently. Nor is there any evidence that Z.R.’s job at the garment factory was “long-term.” Finally, Z.R.’s wish to remain in California to deliver her baby and obtain treatment for her infection is evidence of an intent to remain temporarily, not permanently.
At most the record contains conflicting evidence as to whether Z.R.’s absence from her home in Mexico was temporary or permanent but in reviewing the totality of the circumstances the trial court resolved these conflicts in favor of finding that Z.R.’s stay in California was only a temporary absence from Mexico and that finding, supported by substantial evidence, is binding on us.
III. EMERGENCY JURISDICTION
The bases for jurisdiction contained in section 3421, supra, are not exclusive. A court may also exercise subject matter jurisdiction over the custody of a foreign minor on an emergency basis and retain that jurisdiction as long as the emergency exists. (§ 3424; In re Angel L. (2008) 159 Cal.App.4th 1127, 1139.) The majority opinion posits emergency jurisdiction as an alternative basis on which the juvenile court should exercise jurisdiction in this matter. Again, I disagree.
I agree that the court properly exercised its emergency jurisdiction when initially presented with the petition alleging that Z.R. was being subjected to ongoing sexual abuse by an adult male and that her mother failed to provide her with the necessities of life including food, shelter, clothing and medical care. If the validity of allegations is in doubt, “‘the very possibility that the allegations of immediate harm might be true is sufficient for a court to assume emergency jurisdiction in the best interests of the child under the [UCCJA].’” (In re Joseph D. (1993) 19 Cal.App.4th 678, 688.)
By the time of the jurisdictional hearing in July 2009, however, Z.R. was 16 and a half years old, and a more comprehensive picture of Z.R.’s circumstances had emerged. The evidence revealed that Z.R. and her boyfriend had a loving relationship, that they planned to marry when they returned to Mexico, and that Z.R.’s mother was ready and willing to accept and take care of Z.R. and Z.R.’s baby.
The majority’s conclusion that returning to Mexico endangered Z.R. because the mother, based on her past conduct, might consent to Z.R’s relationship with her boyfriend misses the point. The record shows that the boyfriend is the child’s father and, as far as we know, he loves Z.R. and the baby, still wants to marry Z.R. and wants to take care of them both. Thus, the majority’s solution of placing Z.R. and the baby in foster care violates the fundamental tenet of dependency law that “‘[f]amily preservation is the first priority when dependency proceedings are commenced.’” (In re Calvin P. (2009) 178 Cal.App.4th 958, 962-963 [citation omitted by court].) Further, the DCFS did not provide the court with any guidance as to whether such marriage would be unlawful in Mexico, with or without the mother’s consent. Indeed, with the mother’s consent, such marriage would be lawful in California. (Fam. Code, § 302.)
As further evidence of an on-going emergency the majority states “there is an ongoing risk that [Z.R.’s mother] cannot provide Z.R. with some life necessities” because Mother is poor and lives in a rural area of Mexico. (Maj. opn. ante, at p. 17.) But, as Justice Flier wrote for a unanimous court in In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212, “poverty alone, even abject poverty... is not a valid basis for assertion of juvenile court jurisdiction.”
The evidence summarized above amply supported the court’s determination that there was no ongoing emergency to justify its continued jurisdiction over Z.R. and the court properly dismissed the petition. Accordingly, I would deny the petitioners relief