Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. D.S. (In re J.W.)

• Decision Date: 11 August 2020
• Docket Number: E074079
• Citation: 267 Cal.Rptr.3d 554,53 Cal.App.5th 347
• Parties: IN RE J.W. et al., Persons Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. D.S. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

53 Cal.App.5th 347

267 Cal.Rptr.3d 554

IN RE J.W. et al., Persons Coming Under the Juvenile Court Law.San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.D.S. et al., Defendants and Appellants.

E074079

Court of Appeal, Fourth District, Division 2, California.

Filed August 11, 2020

Certified for Partial Publication.^*

Suzanne M. Davidson, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant A.W.

Jacob I. Olson, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant D.S.

Michelle D. Blakemore, County Counsel, Michael A. Markel, Principal Assistant County Counsel, Jamila Bayati and David R. Guardado, Deputy County Counsel for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

In this appeal, we conclude that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq. ), which governs which state is to entertain a dependency case, is a mandatory rule, but nevertheless does not regulate a California trial court's fundamental jurisdiction.¹ For this reason, it can be forfeited by a failure to raise the issue in juvenile court, as was the case here.

I. FACTUAL AND PROCEDURAL HISTORY

This juvenile dependency appeal follows the termination of parental rights over two half-sisters. A.W., the father of only the younger daughter, contends that the juvenile court failed to comply with the UCCJEA, such that Louisiana should have been the forum for the case. In addition, D.S. (Mother), the mother of both children, contends that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq. ), which pertains to dependency proceedings involving children who may be Indian.²

The case began when, in December 2016, plaintiff and respondent San Bernardino Children and Family Services (CFS) learned that Mother had threatened to physically abuse J.W., the younger daughter, then one year old. Mother had called 911 and threatened to stab herself and J.W. Police officers detained Mother and temporarily committed her pursuant to Welfare and Institutions Code section 5150.

CFS's detention reports stated that, just a few weeks prior, Mother had moved to California from Louisiana, where she had been living with A.W. (A later psychological evaluation specified that Mother had moved from Louisiana earlier that same month, December 2016.) According to a family friend, Mother was spiraling into depression in Louisiana and had mentioned relinquishing her children to the Louisiana Department of Children and Family Services. The family friend accordingly urged Mother to come live with her in California, which she did. The family friend also informed CFS that in 2010 Mother had suffered traumatic brain injuries

requiring dozens of surgeries, from a car accident that killed Mother's mother and sister. Since the accident, Mother had suffered from grand mal seizures and had been diagnosed with schizophrenia.

CFS filed Welfare and Institutions Code section 300 petitions for J.W. and her older, nine-year-old sister L.M. Both petitions alleged failure to protect the child pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), and L.M.'s petition also alleged that the child had been left without any provision for support pursuant to Welfare and Institutions Code section 300, subdivision (g). At the December 27, 2016, detention hearing, the juvenile court found a prima facie case and detained the children. Although the detention reports noted Mother's recent move from Louisiana, CFS did not address whether there was jurisdiction under the UCCJEA, and the juvenile court made no finding concerning the UCCJEA.

At a combined jurisdictional and dispositional hearing in February 2017, the juvenile court found the allegations in both petitions true and ordered family reunification services for Mother and A.W. The juvenile court found it was not in L.M.'s best interest for family reunification services to be offered to her father D.M. The juvenile court found that ICWA did not apply. CFS's jurisdictional/dispositional report again did not raise, and the juvenile court did not address, UCCJEA jurisdiction. Similarly, UCCJEA jurisdiction was not raised or addressed when A.W. made his first appearance at the 12-month review hearing in February 2018.

Because Mother and A.W. challenge only ICWA and UCCJEA deficiencies, we need not describe in detail the parents' subsequent progress. Family reunification services were terminated at the 18-month review hearing and parental rights were later terminated at a November 2019 Welfare and Institutions Code section 366.26 hearing.

II. ICWA^**

III. The UCCJEA

A. Additional Background

In approximately 2014, Mother moved with her daughter L.M. from California, where they had lived for two years, to Louisiana. Mother lived in Louisiana for another two years, and J.W. was born in Louisiana during that time. As far as the record reveals, Mother has been living in California since the petitions were filed in December 2016.

In the detention report, CFS stated that it spoke with A.W., who stated he was living in Louisiana. A.W. was also listed as having a Louisiana address in the jurisdictional/dispositional report and the six-month review report, but at some point before the 12-month review report was filed, A.W. had moved to California into an apartment he shared with Mother. A.W. has provided California addresses since then.

B. Analysis

The UCCJEA is a model law that "arose out of a conference of states in an attempt to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved." ( In re Custody of A.C. (Wash. 2009) 165 Wash.2d 568, 574, 200 P.3d 689, fn. omitted; see also In re Gloria A. (2013) 213 Cal.App.4th 476, 482, 152 Cal.Rptr.3d 550 [purpose of the UCCJEA is to "avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state's or country's custody decisions and facilitate enforcement of another state's or country's custody decrees"].) To date, every state except Massachusetts has enacted the UCCJEA, and the District of Columbia and the United States Virgin Islands have enacted it as well. (See National Conference of Commissioners on Uniform State Laws, Uniform Child Custody Jurisdiction and Enforcement Act (1997), Editors' Notes.) California adopted the UCCJEA effective January 1, 2000, and it is codified in section 3400 et seq. (See In re C.T. (2002) 100 Cal.App.4th 101, 106, 121 Cal.Rptr.2d 897.)³

"The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions." ( In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348, 87 Cal.Rptr.3d 504 ; see also § 3421, subd. (b) [§ 3421, subd. (a) "is the exclusive jurisdictional basis for making a child custody determination by a court of this state"].) "A dependency action is a ‘ "child custody proceeding" ’ subject to the UCCJEA." ( In re Jaheim B., supra , 169 Cal.App.4th at p. 1348, 87 Cal.Rptr.3d 504.) "[A]s with any statute, interpretation of the UCCJEA is a question of law we review de novo." ( Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287, 195 Cal.Rptr.3d 858.)

A.W. contends for the first time on appeal that the juvenile court lacked jurisdiction under the UCCJEA and that, as a result, all findings and orders made by the juvenile court as to J.W. must be reversed. We decline to address this contention on the merits. Instead, we hold that, even assuming the juvenile court lacked UCCJEA jurisdiction, A.W. has forfeited the ability to raise the argument here. Forfeiture would not apply if the UCCJEA provisions governing jurisdiction implicated the courts' fundamental jurisdiction, but, as we explain, they do not.⁴

1. Kabran and Fundamental Jurisdiction

In Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 212 Cal.Rptr.3d 361, 386 P.3d 1159 ( Kabran ), our Supreme Court emphasized the difference between a court's fundamental jurisdiction and the mandatory jurisdictional rules that the court must apply. The court explained that the label "jurisdiction" has multiple meanings: " ‘ "When courts use the phrase ‘lack of jurisdiction,’ they are usually referring to one of two different concepts, although ... the distinction between them is ‘hazy.’ " [Citation.]’ [Citation.] A lack of fundamental jurisdiction is ‘ " ‘ " ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] ..." [¶] "[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court's jurisdiction in the fundamental sense is null and void" ab initio. [Citation.] "Therefore, a claim based on a lack of ... fundamental jurisdiction[ ] may be raised for the first time on appeal. [Citation.]" ’ [Citation.] Likewise, ‘a collateral attack on a final judgment may be made at any time when the judgment under challenge is void because of an absence of "fundamental jurisdiction." ’ " ’ " ( Id. at p. 339, 212 Cal.Rptr.3d 361, 386 P.3d 1159.)

Apart from distinguishing rules by whether they implicate fundamental jurisdiction, "[i]n interpreting statutory requirements, courts have also used the terms ‘mandatory’ and ‘directory.’ Whether a requirement is mandatory or directory is determined largely by its effect: ‘If the failure to comply with a particular procedural step does not invalidate the action ultimately taken, ... the procedural requirement is referred to as "directory." If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed "mandatory." ’ " ( Kabran, supra , 2 Cal.5th at p. 340, 212 Cal.Rptr.3d 361, 386 P.3d 1159.)

The fact that a jurisdiction...