In re Luis J. CA4/1

Filed 8/7/14 In re Luis J. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

In re LUIS J., a Person Coming Under the
Juvenile Court Law.
D065450
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12810)
Plaintiff and Respondent,
v.
D.J.,
Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kimberlee

Lagotta, Judge. Affirmed in part, reversed in part and remanded.
Christopher R. Booth, under appointment by the Court of Appeal for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Evangelina Woo, under appointment by the Court of Appeal for Minor.
D.J. appeals an order of the juvenile court terminating her parental rights to her
son, Luis J., under Welfare and Institutions Code section 366.26 and placing Luis for
adoption. She contends that the court erred by exercising home state or emergency
jurisdiction over Luis pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (Fam. Code, § 3400 et seq.; hereinafter referred to as the UCCJEA or
the Act).1 We affirm the order insofar as the juvenile court exercised its emergency
jurisdiction, but reverse and remand the matter for further proceedings to determine
whether the juvenile court can properly exercise subject matter jurisdiction over Luis in
conformity with the UCCJEA.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2012, D.J. was arrested as she attempted to smuggle 19.82 kilograms
of methamphetamine from Mexico, where she had been living, into the United States.
Five-month-old Luis was in the car with her at the time.2

The San Diego County Health and Human Services Agency (the Agency) filed a
section 300, subdivision (b), petition on Luis's behalf, alleging he was at substantial risk
of harm as a result of the incident. The juvenile court assumed jurisdiction over Luis and
detained him in foster care, although it later placed him with his paternal aunt and uncle
in San Diego who expressed a willingness to adopt him.3 Both D.J. and Luis were U.S.

1 All further statutory references are to the Family Code except as otherwise
specified.

2 D.J. knew she was transporting drugs, but professed that she was carrying
marijuana rather than methamphetamine. D.J. was a methamphetamine addict and had
previously been incarcerated for attempting to smuggle marijuana into the United States.
She had also been stopped at the border on another occasion as she attempted to bring an
undocumented child into the country.

3 By the time Luis was placed with his aunt and uncle, his father had been
hospitalized after being seriously assaulted in Mexico. The father later died as a result of
his injuries.

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citizens and based on the absence of any existing custody orders relating to Luis in
Mexico, the Agency believed that the UCCJEA was inapplicable.

Because D.J. was incarcerated, she was unable to engage in visitation or
participate in reunification services. At the jurisdiction and disposition hearing, she did
not contest the petition's allegations, but requested that the court authorize continued
services for her.
Thereafter, the Agency notified the court that the UCCJEA might apply and the
court asserted emergency jurisdiction thereunder based on the evidence previously
presented in the proceedings. As a result of D.J.'s on-going inability to visit or participate
in services, the court ultimately terminated services and set a permanency planning
hearing. At that hearing, the court terminated D.J.'s parental rights and ordered Luis

placed for adoption. D.J. appeals.
DISCUSSION
1. Overview
The UCCJEA sets forth the exclusive method in California for determining the
proper forum in child custody proceedings where multiple jurisdictions have possible
authority over a child. (In re C.T. (2002) 100 Cal.App.4th 101, 106; § 3402, subd. (d);
§ 3405, subd. (a) [incorporating foreign countries as well as U.S. states within the
purview of the Act].) In the context of dependency proceedings, the UCCJEA is intended
to avoid jurisdictional competition and conflict, promote interstate cooperation and the
litigation of custody issues where the child and his family have the closest connections,
avoid relitigation of another jurisdiction's custody decisions and promote the exchange of
information and other mutual assistance between courts of other jurisdictions. (In re
C.T., supra, at p. 106.)

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2. Jurisdiction under the Act
The existence of subject matter jurisdiction under the UCCJEA is determined at

the time a child custody action is commenced; such jurisdiction cannot be conferred by
stipulation, consent, waiver or estoppel. (In re A.C. (2005) 130 Cal.App.4th 854, 860.)
A. General Subject Matter Jurisdiction
Under section 3421, a California juvenile court may assume jurisdiction to make
an initial determination of custody relating to a child only if:

(i) California is the child's "home state" at the commencement of the
proceedings or, if the child is not present in the state at that time, a parent
or person acting as a parent lives here and California was the child's home
state within the preceding six months (§ 3421, subd. (a)(1));

(ii) under specified circumstances, a court of another state lacks
jurisdiction or has declined to exercise jurisdiction over the child on the
ground that California is the more appropriate forum (§ 3421, subd. (a)(2),
(3));

(iii) all courts having jurisdiction over the child have declined to exercise
jurisdiction on the ground California is the more appropriate forum
(§ 3421, subd. (a)(3)); or

(iv) no other state has jurisdiction over the child under the foregoing tests
(§ 3421, subd. (a)(4)).
A child's "home state" is the state (or country) in which the child lived with a parent or a
person acting as a parent for at least six consecutive months immediately before the child
custody proceeding was commenced or, if the child is younger than six months old, the
state in which the child lived with such parental figure from birth. (§ 3402, subd. (g).)
B. Temporary Emergency Jurisdiction
Even where California is not a child's home state for purposes of the Act, a
California court may exercise temporary emergency jurisdiction over that child if he or
she is in California and has been abandoned or other emergency circumstances

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necessitate court action to protect him or her from actual or threatened "mistreatment or
abuse." (§ 3424, subd. (a); § 3421, subds. (a) & (b).) Such emergency circumstances

exist when there is an immediate risk of danger to the child from being returned to his or
her parents. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1174-1175.)
A court's custody determination remains in effect under the court's emergency
jurisdiction until a child custody proceeding is initiated in a state that has subject matter
jurisdiction over the child. (§ 3424. subd. (b).) Thus, although emergency jurisdiction is
generally intended to be of limited duration, the juvenile court may exercise its authority
under the Act for so long as the circumstances necessitating the dependency proceedings
continue to exist. (In re Nada R, supra, 89 Cal.App.4th at p. 1175, citing In re Stephanie
M. (1994) 7 Cal.4th 295, 312.) Nevertheless, an appropriate assumption of emergency

jurisdiction under the Act does not confer on the state exercising that jurisdiction the
authority to make a permanent custody disposition. (E.g., In re C.T., supra, 100
Cal.App.4th at p. 108; § 3424, subd. (b) [providing that if a child custody proceeding has
not been or is not commenced in a court of a state having jurisdiction under the UCCJEA,
a child custody determination "becomes a final determination, if it so provides and this
state becomes the home state of the child"] [italics added].)
3. Application
Based on the evidence that D.J. and Luis resided in Mexico from the time of Luis's
birth until the time of the incident that gave rise to these proceedings, California could
not properly assert general subject matter jurisdiction over Luis at the outset of the
proceedings. Thus, the Agency appropriately concedes that the juvenile court erred by
not contacting and providing notice to Mexican courts so that they could determine

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whether to assert jurisdiction over, and commence proceedings to protect, Luis.4 (See
§ 3424, subd. (b).)

D.J. also challenges the juvenile court's assumption of temporary emergency
jurisdiction over Luis, on two grounds. She first contends that the court erred in failing to
conduct a hearing to determine whether emergency circumstances existed. (In re Jorge
G. (2008) 164 Cal.App.4th 125, 132.) Second, she argues that the evidence failed to
establish the existence of an emergency necessitating the juvenile court's involvement on
Luis's behalf.
D.J.'s objection that the juvenile court failed to hold an evidentiary hearing on
whether an emergency existed under the Act is unavailing. (See In re A.C., supra, 130
Cal.App.4th at p. 864 [concluding that the finding of an emergency can be made only

after an evidentiary hearing].) Here, the juvenile court held more than one evidentiary
hearing relating to its exercise of protective jurisdiction over Luis and, despite notice and
an opportunity to be heard each time, D.J. did not present any evidence (or even
argument) to counter the allegations of the petition that she was unable to provide Luis
with food, clothing, shelter and medical treatment. Based on the evidence before it, the
juvenile court found that Luis was at a substantial risk of harm and that it was not
possible to safely return Luis to his parents' care. The juvenile court complied with the
requirements of the Act that it conduct an evidentiary hearing before asserting emergency
jurisdiction. (See In re C.T., supra, 100 Cal.App.4th at p. 109.)
D.J.'s alternative argument that the evidence failed to establish an emergency
justifying the exercise of temporary jurisdiction under the Act is also unpersuasive. D.J.'s

4 If Mexico does not assume jurisdiction, California will retain continuing
jurisdiction over Luis and the juvenile court's jurisdictional and dispositional orders will
become the final determination and California will become his home state. (§ 3424,
subd. (b).)

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attempt to use Luis in her efforts to smuggle a substantial amount of methamphetamine
across the international border, in and of itself, established a substantial risk of danger to

him. (See In re A.M. (2014) 224 Cal.App.4th 593, 599.) No arrangements were made for
Luis's father, or any other family, to take custody of Luis at the time of D.J.'s arrest,
essentially leaving Luis abandoned and requiring the juvenile court to assert emergency
jurisdiction over him for his protection. (§§ 3402, subd. (a), 3424, subd. (a); see In re
Jorge G., supra, 164 Cal.App.4th at pp. 132-133.)
The fact that there were potential family caretakers for Luis, such as his paternal
aunt and uncle (with whom the court ultimately placed Luis) or D.J.'s mother in Mexico,
did not obviate the existence of the emergency circumstances necessitating the juvenile
court's exercise of temporary jurisdiction over Luis. (§ 3424, subd. (a); compare In re

S.D. (2002) 99 Cal.App.4th 1068, 1077 [holding that the availability of alternative
caregivers to care for the child of an incarcerated parent as of the jurisdictional hearing is
sufficient to eliminate the juvenile court's jurisdiction over the child under Welf. & Inst.
Code, § 300 even if the parent had not actually made such arrangements].)5
The juvenile court properly assumed emergency jurisdiction over Luis and
continued to exercise that jurisdiction as a result of ongoing risks of harm to him.

5 To the extent that D.J. also suggests that any emergency circumstances existing at
the time the dependency petition was filed on Luis's behalf were obviated by the
Agency's subsequent placement of Luis with his paternal aunt and uncle, we reject that
suggestion. The propriety of exercising emergency jurisdiction over a child is
determined at the outset of the proceedings, not at some later point. (In re A.C., supra,
130 Cal.App.4th at p. 860.) The fact that, in this case, the court was not notified of the
UCCJEA's applicability until well into the proceedings does not invalidate that exercise
of jurisdiction where, as here, the circumstances existing at the outset of these
proceedings established an emergency requiring its intervention.

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 DISPOSITION
The order is affirmed as to the juvenile court's exercise of emergency jurisdiction,

but is reversed and remanded with directions to the juvenile court to contact and provide
notice to Mexican authorities to determine whether Mexico wishes to assume jurisdiction
and commence proceedings to protect Luis. If a Mexican court does not take action on
Luis's behalf after contact and notice, the juvenile court's jurisdictional and dispositional
orders shall remain in effect in accordance with section 3424, subdivision (b). If a
Mexican court assumes jurisdiction and commences proceedings, the juvenile court is
ordered to proceed in conformity with the UCCJEA and void its order terminating D.J.'s
parental rights and placing Luis for adoption.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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