In re A. C., D045073 (CA 6/28/2005)

• Decision Date: 28 June 2005
• Docket Number: D045073
• Parties: In re A. C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JORGE C. et al., Defendants and Appellants.
• Court: California Supreme Court

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In re A. C., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JORGE C. et al., Defendants and Appellants.

D045073

Court of Appeals of California, Fourth District, Division One

Filed June 28, 2005

Appeal from an order of the Superior Court of San Diego County, No. NJ12792, Peter Riddle, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Reversed and remanded with directions.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Jorge C.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Perla A.

John J. Sansone, County Counsel, Susan Strom and Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent.

Mary Elizabeth Handy, under appointment by the Court of Appeal, for the Minor.

McDONALD, J.

Perla A. (Mother) and Jorge C. (Father), parents of A. C. and residents of Tijuana, Mexico, appeal the juvenile court's postdispositional order granting de facto parent status to Jon and Christine D. (the D's.), the foster parents of A., a juvenile court dependent. Mother contends California does not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq.) (the Act).¹ She also contends the court erred by denying her request for a continuance, the dependency petition does not state a cause of action, and the jurisdictional findings and orders are unsupported by substantial evidence. Father contends he was not properly served under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638). Both parents contend the court abused its discretion by granting the D's.' de facto parent application and each parent joins in the other's arguments. We conclude California does not have subject matter jurisdiction of this dependency proceeding and reverse with directions to the juvenile court to dismiss the dependency petition.

I BACKGROUND

In July 2002 Mother, two-year-old A., and A. 's younger sibling were in a car accident in Tijuana. A. sustained spinal cord injuries and severe respiratory complications. The record does not disclose whether her sibling was injured. Mother was seriously injured in the accident. She was confined to a wheelchair and needed a series of reconstructive surgeries to increase her mobility. She was treated in Mexico. Father was the family's sole means of support and not in a position to provide the 24-hour care she needed.

A. was hospitalized in Tijuana and on August 8, 2002, transferred to the Shriners' Hospital in Sacramento, California. On October 25 she returned home to Tijuana but developed complications. She was re-hospitalized in Tijuana and on March 18, 2003, at her family's request, returned to the Shriners' Hospital. On July 9 she returned to Mexico, but her condition deteriorated. On July 10 she was admitted to the intensive care unit at the Shriners' Hospital, where she remained until July 29. After her stay in the intensive care unit, she remained in the hospital.

On August 4, 2003, the Sacramento County child welfare agency (the Sacramento Agency) filed a dependency petition for A. pursuant to Welfare and Institutions Code section 300, subdivision (g).² On August 7 this petition was dismissed as premature because no date had been set for A. 's discharge from the hospital. On September 5, the day she was due to be discharged, the Sacramento Agency took her into protective custody and detained her with the D's., licensed foster parents who lived in Ramona, San Diego County and had experience caring for medically fragile children.³ On September 9 the Sacramento Agency filed a Welfare and Institutions Code section 300, subdivision (g) petition, alleging A. 's injuries were life-threatening without monitoring by pediatric specialists and machinery, unavailable in Tijuana and, possibly, Mexico. On December 12 the petition was dismissed because of insufficient evidence that Mother and Father were neglectful or abusive. The same day, the San Diego County Health and Human Services Agency (Agency) received a referral informing it of the dismissal.

On December 23, 2003, a Spanish speaking Agency social worker interviewed Mother and Father, who agreed to Agency's taking jurisdiction over A. On December 26 Agency detained A. in the D's.' foster home.⁴ On December 31, when A. was three and one-half years old, Agency filed a dependency petition alleging Mother and Father were out of the country and unable to arrange appropriate and adequate care for A. (Welf. & Inst. Code, § 300, subd. (g)). The juvenile court detained A. in foster care and transferred the matter from its Northern division to its South Bay division, closer to Mother and Father's home in Tijuana.

The jurisdictional and dispositional hearing was held on February 20, 2004. Father was not present. Mother said he was home caring for their two-year-old daughter, who was ill. Agency dismissed the Welfare and Institutions Code section 300, subdivision (g) allegation and added a Welfare and Institutions Code section 300, subdivision (b)⁵ allegation that Mother and Father were unable to provide the intensive medical treatment required for A.'s cerebral palsy, spinal cord injury, and respiratory compensation. Mother submitted on the petition on the basis of Agency's reports. The court entered a true finding on the amended petition, declared A. a dependent, removed her from her parents' custody, and placed her in foster care. Agency detained A. with the D's.

On May 25, 2004, the court received the D's.' de facto parent application. On August 5 it granted the application. Father filed his notice of appeal on September 14 and Mother filed hers on September 30.

II THE ACT

A. Introduction

Effective January 1, 2000, the Act replaced the Uniform Child Custody Jurisdiction Act (the UCCJA). The UCCJA's purposes were "to '[avoid] jurisdictional competition and conflict, [promote] interstate cooperation, [litigate] custody where child and family have closest connections, [discourage] continuing conflict over custody, [deter] abductions and unilateral removals of children, [avoid] relitigation of another state's custody decisions, and [promote] exchange of information and other mutual assistance between courts of sister states.' [Citation.]" (In re C.T. (2002) 100 Cal.App.4th 101, 106.) The UCCJA's policy was "to limit, rather than proliferate, jurisdiction." (In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 957; accord, In re Stephanie M. (1994) 7 Cal.4th 295, 313.) It "provide[d] the exclusive method of determining subject matter jurisdiction in custody cases in California" and applied to juvenile dependency proceedings and international custody disputes. (Stephanie M., at p. 310.)

The Act "is the exclusive method of determining the proper forum in custody disputes involving other jurisdictions and governs juvenile dependency proceedings." (In re C.T., supra, 100 Cal.App.4th at p. 106; §§ 3402, subd. (c), 3421, subd. (b).) It applies to international custody disputes (see In re Stephanie M., supra, 7 Cal.4th at p. 310); foreign countries are treated as states for the purpose of determining jurisdiction (§ 3405, subd. (a)). Cases interpreting the UCCJA may be instructive in deciding cases under the Act, except where the two statutory schemes vary. (E.g., In re C.T., supra, 100 Cal.App.4th at pp. 109, fn. 4, 111, fn. 9.)

We are not bound by the juvenile court's findings regarding subject matter jurisdiction, but rather "independently reweigh the jurisdictional facts." (In re Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1034.) "[S]ubject matter jurisdiction either exists or does not exist at the time the action is commenced" (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1015, fn. 5, cited in Zachariah K., at p. 1035) and cannot be conferred by stipulation, consent, waiver, or estoppel (Plas, at pp. 1013-1014; In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 263).

The Act sets forth the prerequisites of jurisdiction relevant to this case in sections 3421 and 3424.

B. Section 3421: Home State Jurisdiction

Section 3421, subdivision (a) confers jurisdiction on the 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)."

1. Section 3421, Subdivision (a)(1)

Section 3402 provides the definitions necessary to a discussion of section 3421, subdivision (a)(1). " 'Home state' means the state in which a child lived with a parent or a person...