Filed 3/5/20; Certified for Partial Publication 4/2/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E073805
Plaintiff and Respondent, (Super.Ct.No. RIJ1700999)
v. OPINION
A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and
Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
1
I
INTRODUCTION
A.M. (Mother) appeals from the juvenile court’s order terminating her parental
rights as to her two children, 11-year-old A.M. and six-year-old J.T., Jr. (J.T.).1 On
appeal, Mother argues (1) the order terminating her parental rights must be reversed
because the Riverside County Department of Public Social Services (DPSS) failed to
comply with the inquiry and notice requirements of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and with Welfare and Institutions Code2 section 224
et seq; and (2) all orders must be reversed because the juvenile court failed to comply
with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because
California did not have subject matter jurisdiction. For the reasons explained herein, we
reject Mother’s contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2017, DPSS received an immediate response referral with
allegations of general neglect and sexual abuse. It was reported that Mother had allowed
her two sons to go into a hotel room for hours with an 18-year-old male stranger who
sexually abused them. After Mother discovered the sexual abuse, she failed to report the
1 R.O. (Father R.O.) is the father of A.M. and is not a party to this appeal. J.T.,
Sr., is the father of J.T. (Father J.T.) and is also not a party to this appeal.
2 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
alleged crime to law enforcement. Instead, the suspect disclosed what he had done to his
mother, who then drove the suspect to the police station to turn himself in.
When the social worker interviewed the boys, A.M. disclosed that he attended the
third grade at an elementary school in Beaumont, but could not recall the last time he had
attended school. He and J.T. had previously lived “with their father someplace far away
as well.” A.M. “believed they were living in Los Angeles with his father.” They had
“lived in a number of homes with friends.” A.M. also reported Mother did not have
much money so they had stayed in more than five or six homes with people willing to
help them, “and all while he was eight years old.” He and his family moved into their
present hotel two days prior, but previously had lived with “various friends, family
members of friends, and people they did not know before.” A.M. also disclosed several
incidents of domestic violence involving Mother and her significant other. J.T. stated
that he “reside[d] with friends, his mother, his brother, his dad, ‘Uncle Grandpa,’ and
‘Batman.’”
The social worker also interviewed and drug tested Mother due to her behavior.
Mother drug tested positive for methamphetamine and amphetamine. Mother admitted to
smoking methamphetamine. She reported that she had been diagnosed with anxiety,
depression, and attention deficit hyperactivity disorder (ADHD) and was not on
medication. When asked about her residence plan, Mother stated that she and her boys
will stay with a friend in Victorville or she will find another place to go for the night.
Her safety network consisted only of J.L., also known as “‘Batman,’” because her former
3
foster family “moved out of state and abandoned her and the children.” Mother also had
a few friends who helped her by giving she and her sons a place to stay for a few days.
Due to concerns for the children’s safety, J.T. and A.M. were taken into protective
custody.
When questioned about the children’s placement, Mother informed the social
worker that J.T.’s father resided in Arizona and is the only father A.M. had ever known.3
Mother reported there was a family law case open in Las Vegas, Nevada. Father J.T. did
not bring the boys back to Mother on time after a visit earlier this year. Mother did not
believe Father J.T. could care for the children, because he was not stable and had a
problem with alcohol.
The social worker thereafter contacted Father J.T. He stated that he lived in
Arizona with relatives but was unable to provide a physical address, because he had just
moved in. He and the paternal grandmother had been primarily caring for the children
since they were babies. The children were with his mother for more than a year and with
him for approximately five months in Las Vegas earlier this year. He also stated that
Mother came to get A.M. and left with both children after a visit and that Mother has had
the children in her care for only a few months. Father J.T. admitted having a drug and
alcohol history and wanted the children to be released to him. He also agreed to contact
the paternal grandmother to discuss possible placement of the children in her care.
3 Father R.O. was incarcerated in state prison serving a 41-year-to-life sentence
for first degree murder. He had been incarcerated since 2009 and had no contact with
A.M. except through letters and telephone. The juvenile court later found Father J.T. to
be the presumed father for both children.
4
On December 5, 2017, a petition was filed on behalf of the children pursuant to
section 300, subdivisions (b) (failure to support), (d) (sexual abuse), and (g) (no provision
for support).
Regarding ICWA, Mother was “unsure if she [was] of American Indian descent”
and “denied that she or the children [were] registered with a tribe.” Fathers J.T. and R.O.
denied American Indian ancestry. At the detention hearing, both Mother and Father J.T.
indicated having no American Indian ancestry. However, in Mother’s ICWA-020 form,
she checked the box indicating that she was or may be a member of, or eligible for
membership in a federally recognized Indian tribe and wrote the tribe’s name as
“unknown.” She also checked the box indicating that one or more of her parents,
grandparents, or other lineal ancestors is or was a member of a federally recognized tribe
and wrote “MGF, MGA[C.M.]” beside the box. In Father J.T.’s ICWA-020 form, he
stated that he had no Indian ancestry.
On December 6, 2017, the juvenile court formally removed the children from
parental custody and found that ICWA may apply. The court authorized an Interstate
Compact for Placement of Children (ICPC) with the state of Arizona and directed DPSS
to continue with their assessment of relatives for placement.
On December 15, 2017, DPSS filed an ICWA-030 Notice of Child Custody
Proceeding (ICWA notice) as to each child. In the ICWA notice, DPSS included each
child’s name, date and place of birth, and attached each child’s birth certificate. The
ICWA notices also included Mother’s name, former address, and date and place of birth,
5
as well as Father J.T.’s name, former address, and date and place of birth. As to A.M.,
the ICWA notice included Father R.O.’s name, current address, and date of birth. Place
of birth is indicated as “Unknown.” Under the tribe box for Mother, the ICWA notices
stated, “Bureau of Indian Affairs [(BIA)], No Tribe Specified.” Under the tribe box for
Father J.T. and Father R.O., the ICWA notices stated, “Does not apply.” The ICWA
notices also included the maternal grandmother’s and maternal grandfather’s names,
former addresses, dates and places of birth, and dates and places of death. No tribe was
specified for either maternal grandparent. The ICWA notices further noted the paternal
grandmother’s name (Father J.T.’s mother), current address and birth date. Under tribe,
DPSS noted “Does not apply.” No information was provided as to A.M.’s paternal
grandmother or either childs’ paternal grandfather. “M.T.” is noted to be J.T.’s maternal
great-grandmother with a current address of Los Angeles, California. No additional
information was provided as to the children’s maternal great-grandparents or Mother’s
grandfather’s name (C.M.), or either child’s paternal great-grandparents.
DPSS mailed the ICWA notices by certified mail on December 14, 2017, to the
BIA. On December 29, 2017, the BIA acknowledged receipt of the ICWA notices and
indicated that it is returning the “letter of inquiry due to insufficient information to
determine tribal affiliation (25 CFR 23.11 (d)) or you have not identified a tribe. When
additional information becomes available, please forward the Notice to the appropriate
tribe(s) using the latest ICWA Designated Tribal Agents List.”
6
On December 21, 2017, Mother informed the social worker that “she was told that
she has Blackfoot and Cherokee tribe affiliation but was not registered.” She also stated
that she “planned to register with them on the day of contact.” The social worker
attempted to assist Mother in obtaining the contact information for the tribes so Mother
could register but was unable to find such information. The social worker informed
Mother that if she was “found to have affiliation with the tribes, she could be appointed
an attorney from the tribes and placement of the children could change.”
Mother disclosed that she was raised in the foster care system due to her biological
parents not being involved in her life. She was placed in legal guardianship at the age of
18 months until she was 11 years old, and then was placed in group homes until she was
emancipated from the system. She moved to Arizona in 2009 and remained there until
August 29, 2016. She had been diagnosed with bipolar, depression, and ADHD, and had
been prescribed multiple psychotropic medications.
Father J.T. reported that he was born in California, moving to Arizona shortly after
his birth, returning to California for the second half of high school. He met Mother in
2009 and they moved in together with his family in 2011 until the end of their
relationship in 2014. Mother then moved out and became a transient, while he kept the
children. In the summer of 2017, Mother took the children back to California with her.
He contacted law enforcement but “was informed he had no grounds to claim she
kidnap[ped the children] since there was no court order from family law.” He reported
that he “filed the paperwork but was unable to follow through with it due to the mother’s
7
whereabouts being unknown at that time.” He “eventually was informed by people living
in Arizona that the children were [in California].”
The social worker received a telephone call from a family member who reported
the last time they had contact with the children was “during the summer of 2017” and that
they were informed Mother “‘stole’” the children from Las Vegas by hopping on a
Greyhound bus. The family member also stated the last known location for Mother and
children was them residing in Indio, California. The family member expressed a concern
that the parents had been unable to keep a stable home for the children.
On December 21, 2017, Father J.T. informed the social worker that he had
completed and submitted “family law orders” regarding J.T. after Mother “took his son
without question.” “He reported because the mother’s whereabouts were unknown, he
was unable to successfully serve her with the documents.” He had received numerous
messages on Facebook that the children were in Tucson, Arizona, but denied refiling the
paperwork due to Mother then moving to Barstow and her allowing him to see the
children. Mother was unaware of whether there were family law orders in place for J.T.
She noted receiving documents in the mail a few days before her birthday in 2016 but the
documents told her she did not have to appear in court. She believed Father J.T. “did not
appear either and child support was established at that hearing.”
Father J.T. also stated that A.M. was not attending school in Las Vegas and he was
not aware if the child was attending school in either California or Arizona. He believed
A.M. was enrolled in an elementary school in Barstow. The social worker attempted to
8
gather information from the “Corona/Norco” school district to determine how many
schools A.M. had attended in California.
DPSS was unable to locate relatives for the children and placed them in foster
care. DPSS eventually submitted an ICPC request on behalf of the paternal grandmother.
On January 8, 2018, Mother was arrested for robbery and was in jail.
On January 9, 2018, the juvenile court found “good ICWA notice” and continued
the contested jurisdictional hearing for a placement assessment. The court authorized an
ICPC with the paternal grandmother in Nevada.
On February 14, 2018, Mother was sentenced to two years in state prison for
assault with a deadly weapon causing great bodily injury and evading a police officer.
At the contested jurisdictional/dispositional hearing held February 15, 2018, the
juvenile court found the allegations in the first amended petition true and declared the
children dependents of the court. Custody was removed from the parents and
reunification services were ordered for Mother and Father J.T. Father R.O. was denied
services under section 361.5, subdivisions (b)(12) and (e)(1). The court also ordered an
ICPC with Father J.T. and found DPSS had conducted a sufficient ICWA inquiry and that
ICWA may apply.
On July 10, 2018, Mother reported that she “may have Blackfoot Tribe ancestry”
but that she was not registered. The social worker noted that it had been over six months
since Mother first reported affiliation with the Blackfeet tribe and that she was not
registered. However, Mother had not made any attempts to follow up on this
9
information. The social worker therefore recommended the court find ICWA “does not
apply to this case.” No ICWA notices were sent to the Blackfeet or Cherokee tribes.
On July 12, 2018, Mother reported that it was she who had initially completed and
submitted family law orders for J.T., because Father J.T. had attempted to keep J.T. from
her. However, Mother did not follow through with filing the papers. There were no
family law orders in place at that time.
After Mother was released from custody on July 27, 2018, she enrolled in a drug
treatment program. She also participated in some of her services while incarcerated, and
was taking prescription medication for depression and anxiety. She did not have stable
housing or employment.
Father J.T. did not participate in any services during the review period. In
addition, he was “‘hearing voices in his head.’” The state of Arizona denied his ICPC
due to Father J.T.’s lack of compliance with the ICPC process. Several attempts were
made by Arizona’s ICPC unit to conduct a home study of Father J.T.’s residence, but he
did not cooperate. Therefore, the ICPC referral was denied and closed. Father J.T. said
that he was homeless and currently staying at a friend’s home in Arizona.
Neither parent had any in-person visitation with the children. However, Mother
had weekly monitored telephone contact with the children. Father called the children
once in the past six months but did not speak to them.
On August 15, 2018, the juvenile court found ICWA did not apply, continued
reunification services for Mother, and terminated services for Father J.T.
10
By the 12-month review hearing, Mother did not have stable housing or
employment. She was temporarily residing with a friend and occasionally cleaning
houses for money. She had two active warrants for her arrest. In addition, she left her
substance abuse program prior to its completion and did not enroll in another drug
treatment program or counseling. Mother, however, completed a parenting course and
randomly drug tested negatively. Her visits with the children were inconsistent and
Father J.T. did not visit the children at all. During the reporting period, no new
information had been provided to suggest that ICWA applied to the children.
On December 14, 2018, the children were placed with the paternal grandmother in
Nevada. The children were thriving and doing well in the paternal grandmother’s home.
The paternal grandmother was nurturing and loving towards the children and their
emotional and physical needs were being met.
On February 8, 2019, the juvenile court found that ICWA did not apply,
terminated Mother’s reunification services, reduced the parents’ visitation to once per
month, and set a section 366.26 hearing.
In its section 366.26 hearing report, DPSS noted that during “this reporting period,
no new information has been provided to suggest that ICWA applies to the children.”
The children continued to thrive in their placement with the paternal grandmother. The
paternal grandmother was nurturing toward the children, attended to all their needs, and
the children appeared to be bonded to her. The paternal grandmother desired to adopt the
children. Father J.T. had not visited the children, but called them “sporadically.” Since
11
being placed in Nevada, Mother had called to talk to the children “sporadically every
three to four weeks.”
On September 5, 2019, Mother filed section 388 petitions, seeking return of the
children to her care on family maintenance services. Mother alleged that she had
completed her case plan, maintained visitation, and shared a strong bond with the
children.
On September 6, 2019, DPSS reported that Mother was sentenced to state prison
for a term of three years and that her release date was scheduled for March 2021. DPSS
also noted that the children were doing well and were stable in their placement with the
paternal grandmother who desired to adopt them.
The combined section 388 and section 366.26 hearings were held on September 6,
2019. Mother was present in custody. DPSS submitted on its reports and all counsel
stipulated that Mother’s stipulated testimony could apply for both hearings. The juvenile
court denied Mother’s section 388 petitions for failing to state either changed
circumstances or best interest of the children. The court also terminated parental rights
and found the children adoptable.
On September 30, 2019, Mother filed a timely notice of appeal, challenging the
orders made at the September 6, 2019 hearings.
12
III
DISCUSSION
A. Compliance with ICWA
Mother contends the order terminating parental rights must be reversed because
DPSS did not comply with the inquiry and notice requirements of ICWA, resulting in
incomplete ICWA notices being sent.4 We disagree.
1. Standard of Review
“The juvenile court must determine whether proper notice was given under ICWA
and whether ICWA applies to the proceedings. [Citation.]” (In re Charlotte V. (2016) 6
Cal.App.5th 51, 57.) When, as is the case here, the facts are undisputed, we review
independently whether the requirements of ICWA have been satisfied. (In re J.L. (2017)
10 Cal.App.5th 913, 918 (J.L.).) However, we review the juvenile court’s ICWA
findings under the substantial evidence test, which requires us to determine if reasonable,
credible evidence of solid value supports the court’s order. (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) We must
uphold the court’s orders and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re
Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
4 The juvenile court’s order terminating Mother’s parental rights did not
specifically mention ICWA, but the order was “necessarily premised on a current finding
by the juvenile court that it had no reason to know [the children] [were] [] Indian
child[ren] and thus ICWA notice was not required.” (In re Isaiah W. (2016) 1 Cal.5th 1,
10, italics omitted (Isaiah W.).)
13
2. Relevant Law
“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s
over the consequences to Indian children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in non-
Indian homes.’” (Isaiah W., supra, 1 Cal.5th at pp. 7-8.) “ICWA reflects a congressional
determination to protect Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal standards a state court must
follow before removing an Indian child from his or her family. [Citations.] For purposes
of ICWA, an ‘Indian child’ is an unmarried individual under age 18 who is either a
member of a federally recognized Indian tribe or is eligible for membership in a federally
recognized tribe and is the biological child of a member of a federally recognized tribe.
[Citations.]” (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).)
There are two separate ICWA requirements which are sometimes conflated: the
obligation to give notice to a tribe, and the obligation to conduct further inquiry to
determine whether notice is necessary. Notice to a tribe is required, under federal and
state law, when the court knows or has reason to know the child is an Indian child.
(Elizabeth M., supra, 19 Cal.App.5th at p. 784.) In contrast, prior to January 2019, the
department was to make further inquiry if it “knows or has reason to know that an Indian
child is or may be involved” in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics
added.)
14
The “‘courts and county welfare departments “have an affirmative and continuing
duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has
been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at
risk of entering foster care or is in foster care.”’ [Citation.]” (J.L., supra, 10 Cal.App.5th
at p. 918, italics omitted.) “This notice requirement, which is also codified in California
law [citation], enables a tribe to determine whether the child is an Indian child and, if so,
whether to intervene in or exercise jurisdiction over the proceeding.” (Isaiah W., supra, 1
Cal.5th at p. 5.)
Although the notice requirement has always been triggered by a court having
“‘reason to know’” a child may be an Indian child, for many years the term was
undefined under federal law. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 650.) It
was not until 2016 that the Department of the Interior promulgated regulations defining
“‘reason to know.’” (Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778, 38803.)
Under the federal regulations, there is “reason to know” a child is an Indian child
if “(1) Any participant in the proceeding, officer of the court involved in the proceeding,
Indian Tribe, Indian organization, or agency informs the court that the child is an Indian
child; [¶] (2) Any participant in the proceeding, officer of the court involved in the
proceeding, Indian Tribe, Indian organization, or agency informs the court that it has
discovered information indicating that the child is an Indian child; [¶] (3) The child who
is the subject of the proceeding gives the court reason to know he or she is an Indian
child; [¶] (4) The court is informed that the domicile or residence of the child, the child’s
15
parent, or the child’s Indian custodian is on a reservation or in an Alaska Native village;
[¶] (5) The court is informed that the child is or has been a ward of a Tribal court; or [¶]
(6) The court is informed that either parent or the child possesses an identification card
indicating membership in an Indian Tribe.” (25 C.F.R. § 23.107(c).)
State law, however, defined “reason to know” in 2006. (Senate Bill No. 678,
Stats. 2006, ch. 838, §§ 31, 32 (2005-2006 Reg. Sess.); former § 224.3, subd. (b).) From
2006 until 2018, when Assembly Bill No. 3176 (2017-2018 Reg. Sess.) amended the
definition, a court or agency had “reason to know” a child may be an Indian child if, for
instance, a “person having an interest in the child . . . provide[d] information suggesting
the child is a member of a tribe or eligible for membership in a tribe or one or more of the
child’s biological parents, grandparents, or great-grandparents are or were a member of a
tribe.” (Former § 224.3, subd. (b)(1), italics added; see In re Shane G. (2008) 166
Cal.App.4th 1532, 1539 [“If . . . circumstances indicate a child may be an Indian child,
the social worker must further inquire regarding the child’s possible Indian status.
Further inquiry includes interviewing the parents, . . . extended family members or any
other person who can reasonably be expected to have information concerning the child’s
membership status or eligibility. [Citation.]”]; see also Cal. Rules of Court,
rule 5.481(a)(4) [“If the social worker . . . or petitioner knows or has reason to know that
an Indian child is or may be involved, that person or entity must make further inquiry as
soon as practicable.”].) As cases at the time noted, the former provision did not demand
much before requiring ICWA notice. (See Dwayne P. v. Superior Court (2002) 103
16
Cal.App.4th 247, 258 [mere “minimal showing required to trigger the statutory notice
provisions”].)
But now, as amended by Assembly Bill No. 3176, which became effective on
January 1, 2019, the Welfare and Institutions Code’s definition of “reason to know”
conforms to the definition provided by federal regulations. (§ 224.2, subd. (d); see
Assem. Com. on Human Services, Analysis of Assem. Bill No. 3176 (2017-2018 Reg.
Sess.) Aug. 28, 2018, p. 8 [the bill “‘simply seeks to change California law to comply
with Federal regulations’”].) Under section 224.2, subdivision (d)(1) through (d)(6), the
six criteria to determine the definition of “reason to know” are the same as those under
the federal regulations. (See § 224.2, subd. (d) & 25 C.F.R. § 23.107(c).)
In addition, section 224.2, subdivisions (a) through (c), currently provide as
follows: “(a) The court, county welfare department, and the probation department have
an affirmative and continuing duty to inquire whether a child for whom a petition under
Section 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty
to inquire begins with the initial contact, including, but not limited to, asking the party
reporting child abuse or neglect whether the party has any information that the child may
be an Indian child. [¶] (b) If a child is placed into the temporary custody of a county
welfare department pursuant to Section 306 or county probation department pursuant to
Section 307, the county welfare department or county probation department has a duty to
inquire whether that child is an Indian child. Inquiry includes, but is not limited to,
asking the child, parents, legal guardian, Indian custodian, extended family members,
17
others who have an interest in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child and where the child, the parents, or Indian
custodian is domiciled. [¶] (c) At the first appearance in court of each party, the court
shall ask each participant present in the hearing whether the participant knows or has
reason to know that the child is an Indian child. The court shall instruct the parties to
inform the court if they subsequently receive information that provides reason to know
the child is an Indian child.”
Section 224.2, subdivision (e), states, “If the court, social worker, or probation
officer has reason to believe that an Indian child is involved in a proceeding, the court,
social worker, or probation officer shall make further inquiry regarding the possible
Indian status of the child . . . .” The provision goes on to state that further inquiry
includes “[i]nterviewing the . . . extended family members” to gather additional
information as well as “[c]ontacting . . . any other person that may reasonably be
expected to have information regarding the child’s membership status or eligibility.”
(§ 224.2, subds. (e)(1)-(2), italics added.)
“If the notice duty is triggered under ICWA, the notice to a tribe must include a
wide range of information about relatives, including grandparents and great-grandparents,
to enable the tribe to properly identify the children’s Indian ancestry. [Citation.] Any
violation of this policy requires the appellate court to vacate the offending order and
remand the matter for further proceedings consistent with ICWA requirements.
[Citation.]” (In re J.D. (2010) 189 Cal.App.4th 118, 124 (J.D.).) Federal regulations
18
require that ICWA notices include, “[i]f known, the names, birthdates, birthplaces, and
Tribal enrollment information” of parents and “other direct lineal ancestors of the child,
such as grandparents.” (25 C.F.R. § 23.111(d)(3).) The Welfare and Institutions Code
provisions applying ICWA contain similar requirements. Although those provisions
were amended, they at all relevant times required that an ICWA notice contain “[a]ll
names known of the Indian child’s biological parents, grandparents, and great-
grandparents, or Indian custodians, including maiden, married, and former names or
aliases, as well as their current and former addresses, birth dates, places of birth and
death, tribal enrollment information of other direct lineal ancestors of the child, and any
other identifying information, if known.” (§ 224.3, subd. (a)(5)(C); see former § 224.2,
subd. (a)(5)(C).)
ICWA provides that a state may provide “a higher standard of protection to the
rights of the parent” than the rights provided under ICWA. (25 U.S.C. § 1921.) A court
must apply the higher standard whenever it applies. (Ibid.; see § 224, subd. (d).) A
violation of any “higher state standard, above and beyond what the ICWA itself
requires,” however, “must be held harmless unless the appellant can show a reasonable
probability that he or she would have enjoyed a more favorable result in the absence of
the error.” (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 (S.B.); see Nicole K. v.
Superior Court (2007) 146 Cal.App.4th 779, 784 [finding error harmless where facts
provided “no basis to believe that providing” a parent’s correct birth year “would have
produced different results concerning the minor’s Indian heritage”].)
19
3. Whether Former or Current ICWA Statutes Apply
In this case, DPSS sent ICWA-030 notices to the BIA in December 2017. At the
six-month review hearing on August 15, 2018, and 12-month review hearing on
February 8, 2019, the juvenile court found that ICWA did not apply. At the 12-month
review hearing, the court terminated Mother’s reunification services and set a
section 366.26 hearing. In finding ICWA did not apply, the court stated that proper
notice had been given as required by law, a “sufficient inquiry” had been made, and there
was “no information to show that ICWA may now apply.” Mother did not challenge the
order from the 12-month review hearing by filing a writ petition.
In December 2017, July 2018, and February 2019, the social worker continued to
inquire of Mother as to her Indian ancestry. Mother initially reported in her ICWA-020
form that the maternal grandfather had Indian ancestry but did not know the tribe’s name.
Later, on December 21, 2017, Mother stated that she was told she had “Blackfoot and
Cherokee tribe affiliation but was not registered, however, [she] planned to register with
them on the day of contact.” On July 10, 2018, Mother reported that “she may have
Blackfoot Tribe ancestry. However, she is not registered.” During the dependency
proceedings, Mother had no additional or new information to provide as to her Indian
ancestry. In addition, Mother’s biological parents were deceased and DPSS was unable
to locate relatives with the exception of Mother’s former foster sibling. On September 6,
2019, at the section 366.26 hearing, the juvenile court implicitly found that ICWA did not
20
apply. Mother subsequently appealed, challenging DPSS’s investigatory and noticing
efforts.
DPSS argues that under Isaiah W., the current ICWA statutes apply because the
notice of appeal was filed from the September 6, 2019 order terminating parental rights.
Mother responds that the statutes in effect at the time DPSS sent the defective notices to
the BIA in December 2017 apply. She also asserts that retroactive application of
amended section 224.2 is inappropriate because Isaiah W. does not support DPSS’s
theory and that “[c]ases are not authority for propositions not considered.” We find
DPSS’s arguments more persuasive as retroactivity is not at issue under the
circumstances. In this regard, Isaiah W., supra, 1 Cal.5th 1 is instructive.
In Isaiah W., supra, 1 Cal.5th 1, the juvenile court found ICWA did not apply at
the jurisdictional/dispositional hearing. The mother did not appeal from that order or
otherwise object to the court’s ICWA finding. (Id. at p. 6.) Nearly one year later, the
court terminated the mother’s parental rights and again found ICWA did not apply. The
mother appealed the court’s order terminating her parental rights on the ground that the
court had reason to know the minor was an Indian child but failed to order the department
to comply with the ICWA notice requirements. (Id. at pp. 6-7.) The Court of Appeal
denied relief, finding the mother forfeited her right to appeal from the section 366.26
order due to her failure to appeal from the jurisdictional/dispositional order, which
became final 60 days after pronouncement by the court. (Isaiah W., at p. 7.)
21
Our Supreme Court reversed and remanded for further ICWA proceedings, finding
the mother did not forfeit the ICWA issue by failing to appeal from the dispositional
order because ICWA and the corresponding provisions of California law impose an
affirmative and continuing duty on the juvenile court to inquire whether the child is an
Indian child. (Isaiah W., supra, 1 Cal.5th at pp. 6, 9-12, 14-15.) The court concluded:
“In light of this continuing duty, the . . . order terminating [the mother’s] parental rights
was necessarily premised on a current finding by the juvenile court that it had no reason
to know Isaiah was an Indian child and thus ICWA notice was not required. Here, the
juvenile court made that finding explicit in the course of the [section 366.26] hearing
when it said, ‘the Court is once again making a finding [that] I have no reason to know
the child would fall under the [ICWA].’ Properly understood, [the mother’s] present
appeal does not seek to challenge the juvenile court’s finding of ICWA’s inapplicability
underlying the . . . dispositional order. It instead seeks to challenge the juvenile court’s
finding of ICWA’s inapplicability underlying the . . . order terminating her parental
rights.” (Id. at p. 10.)
The Supreme Court explained: “The plain language of [former section 224.3,
subdivision (a)]—declaring an ‘affirmative and continuing duty’ that applies to ‘all
dependency proceedings’ [citation]—means that the juvenile court in this case had a
present duty to inquire whether Isaiah was an Indian child at the Apri1 2013 proceeding
to terminate [the mother’s] parental rights, even though the court had previously found no
reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah
22
in foster care. Because the validity of the Apri1 2013 order is necessarily premised on
the juvenile court’s fulfillment of that duty, there is nothing improper or untimely about
[the mother’s] contention in this appeal that the juvenile court erred in discharging that
duty.” (Isaiah W., supra, 1 Cal.5th at p. 11, italics omitted.) The court found that the
mother’s “present appeal does not seek to challenge the juvenile court’s finding of
ICWA’s inapplicability underlying the January 2012 dispositional order. It instead seeks
to challenge the juvenile court’s finding of ICWA’s inapplicability underlying the
Apri1 2013 order terminating her parental rights.” (Id. at p. 10.) The court concluded
that the “juvenile court’s determination of ICWA’s inapplicability at the January 2012
hearing had no effect on its ongoing inquiry and notice obligations” (id. at p. 12) and that
“[t]he court’s April 2013 termination order necessarily subsumed a present determination
of ICWA’s inapplicability.” (Id. at p. 15.)
While the facts of Isaiah W. differ from those in this case in some respects, it is
nonetheless instructive. Here, the juvenile court explicitly found that ICWA did not
apply at the six-month review hearing held on August 15, 2018. At that hearing, the
court continued Mother’s reunification services. The juvenile court also explicitly found
that ICWA did not apply at the contested 12-month review hearing on February 8, 2019.
By February 2019, current ICWA statutes were in effect. At that hearing, the court also
terminated reunification services and set a section 366.26 hearing. Mother did not file a
writ petition from the six-month review order, assuming she could, nor did she object at
the subsequent 12-month review hearing held in February 2019. She also did not object
23
at the section 366.26 hearing held on September 6, 2019, when the court implicitly found
DPSS complied with the ICWA notice and inquiry requirements and that ICWA did not
apply. Like Isaiah W., Mother’s challenge is applicable to the juvenile court’s finding of
ICWA inapplicability underlying the September 6, 2019 order terminating her parental
rights, not the February 15, 2018 jurisdictional/dispositional order or the August 15, 2018
six-month review order continuing her services. (Isaiah W., supra, 1 Cal.5th at p. 15;
J.L., supra, 10 Cal.App.5th at p. 917, fn. 4.)
Therefore, similar to Isaiah W., on September 6, 2019, the juvenile court had a
duty to determine whether the children were Indian children based on the circumstances
existing on September 6, 2019, and not based on the facts or law that existed in
December 2017 when the ICWA notices were sent. The determinative factor is not when
the ICWA-030 notices were mailed to the relevant tribes, but when the section 366.26
hearing was held. The juvenile court’s 2019 termination order “necessarily subsumed a
present determination” of ICWA’s applicability. (Isaiah W. supra, 1 Cal.5th at p. 15.)
Mother relies on In re A.W. (2019) 38 Cal.App.5th 655, which was decided in
2019 and applied the statute in effect at the time of the defective notice. The court there
rejected an argument that the revised language of section 224.2 requires notice “only
when the court knows or has reason to know the child is definitively a member (or knows
a parent is definitively a member and the child is eligible for membership)” in an Indian
tribe. (A.W., at p. 665, italics omitted.) The court in A.W. did not conduct its analysis
under the revised statutes. (Id. at p. 662, fn. 3.) However, the A.W. court assumed the
24
California law in effect at the time the juvenile court had conducted the ICWA
compliance hearing at issue in 2016 applied and did not conduct an analysis under Isaiah
W. (A.W., at p. 662, fn. 3.)
The issue before us then is whether the juvenile court and DPSS complied with the
inquiry and notice provisions of the current ICWA statutes. We agree with DPSS that the
present statute is not being applied retroactively because the juvenile court has a
continuing duty to determine whether ICWA applies. Since Mother is appealing from the
findings made at the September 6, 2019 section 366.26 hearing and not those in 2017 or
2018, the current ICWA statutes apply.
4. Duty of Inquiry and Duty to Notice Under Current ICWA Statutes
Mother argues DPSS failed to comply with the ICWA notice requirements
because it omitted Mother’s grandfather’s (the children’s great-grandfather) name, C.M.,
on the ICWA-030 notices. She also faults DPSS in failing to send ICWA notices to the
Blackfeet and Cherokee tribes after Mother informed the social worker that “she believed
she had Blackfoot and Cherokee heritage.”
As previously noted, the agency is required to provide notice if it knows or has
“reason to know” the child is an Indian child. (25 U.S.C. § 1912, subd. (a); § 224.2,
subd. (f).) Here, the information available to DPSS and the juvenile court did not meet
the “reason to know” criteria set forth in the federal regulations and the California
statutes related to ICWA. (See 25 U.S.C. § 1912, subd. (c); § 224.2, subd. (d).) No one
had informed the court or DPSS that the children were Indian children, the children had
25
not given the court reason to know they were Indian children, there was no suggestion the
children had ever lived on a reservation or had been wards of a tribal court, and there was
no indication that the children or their parents possessed a tribal identification card. (See
25 C.F.R. § 23.107, subds. (c)(1), (3)-(6); § 224.2, subd. (d)(1), (3)-(6).) At most, Mother
had provided information indicating she may have Indian heritage. Although it would
follow that the children might also have some Indian heritage, the information Mother
provided to DPSS did not rise to the level of “information indicating that the child[ren]
[are] [] Indian child[ren].” (See 25 C.F.R. § 23.107(c)(2), (3); § 224.2, subd. (d)(2), (3).)
Mother argues “the list of ‘reasons to know’ should not be read in a restrictive
fashion” and that “[i]n conformity with prior case law, when, as here, the parent lists a
grandfather’s name as a member of an Indian tribe [citation] and subsequently provides
the names of the Blackfoot and Cherokee tribes [citation], that is more than enough to
establish a ‘reason to know’ the child may be eligible for membership in those tribes
[citation], triggering the notice requirement.” We disagree. Prior case law pre-dates the
2016 enactment of the new federal regulations defining “reason to know” and the 2019
amendments to the California statutes distinguishing between “reason to know” and
“reason to believe.” (See In re D.C. (2015) 243 Cal.App.4th 41, 62; In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1387-1388 (Kadence P.); In re B.H. (2015) 241
Cal.App.4th 603, 606-607 (B.H.); see 81 Fed.Reg. 38804, 38805 (June 14, 2016)
[distinguishing between “reason to know” and “reason to believe” and indicating state
courts may require additional investigation].)
26
In any event, even before the regulations and statutory amendments clarifying the
meaning of “reason to know,” courts had found that vague information or “‘family lore’”
indicating a child “‘may’” have Indian ancestry insufficient to require notice. (See J.L.,
supra, 10 Cal.App.5th at pp. 921-923; In re Jeremiah G. (2009) 172 Cal.App.4th 1514,
1516 [bare suggestion that child might be an Indian child insufficient to trigger notice]; In
re Michael V. (2016) 3 Cal.App.5th 225, 234 [statements indicating Indian heritage made
by relative require further inquiry but not notice]; cf. Kadence P., supra, 241 Cal.App.4th
at pp. 1387-1388 [photos and articulated basis of belief made claim of Indian ancestry
more than family lore].) Here, the only specific information Mother provided was a
statement that she was told and believed that she may have Indian ancestry with the
Blackfeet and Cherokee tribes but was not registered. She also listed her grandfather,
C.M., as having possible Indian heritage but never provided additional information
concerning her Indian ancestry. We are not persuaded that Mother’s statements, alone,
were sufficient to trigger the ICWA notice provisions.
That said, the information Mother provided was sufficient to require further
inquiry, as the juvenile court ordered. Likewise, the information gave the juvenile court
and DPSS reason to believe that an Indian child was involved and, thus, the additional
inquiry should have, at minimum, included interviews with Mother’s extended family
members. (§ 224.2, subd. (b), (e); see In re N.G. (2018) 27 Cal.App.5th 474, 482 [social
worker required to make further inquiry based on minimal parental disclosures, including
inquiry to maternal uncle]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1200 [finding the
27
duty to inquire requires less certainty regarding the child’s Indian status than the duty to
notice].)
Nonetheless, in this case DPSS could not have obtained any further information
from any other maternal relatives. Both maternal grandparents were deceased. In
addition, Mother was raised in foster care due to her biological parents not being
involved in her life and had no contact with any relatives. She was placed in legal
guardianship at the age of 18 months until she was 11 years old. She then was placed in
group homes until she was emancipated. Mother’s support system consisted of her
significant other and her former foster family. In addition, she did not provide DPSS
with information as to any maternal relative for Indian ancestry or placement for the
children. No maternal relative appeared at any hearing or participated in this matter.
ICWA does not obligate the court or DPSS “to cast about” for investigative leads.
(In re Levi U. (2000) 78 Cal.App.4th 191, 199.) There is no need for further inquiry if no
one has offered information that would give the court or DPSS reason to believe that a
child might be an Indian child. This includes circumstances where parents “fail[ ] to
provide any information requiring followup” (S.B., supra, 130 Cal.App.4th at p. 1161;
see B.H., supra, 241 Cal.App.4th at p. 608; In re C.Y. (2012) 208 Cal.App.4th 34, 42), or
if the persons who might have additional information are deceased (J.D., supra, 189
Cal.App.4th at p. 124), or refuse to talk to DPSS. (In re K.M. (2009) 172 Cal.App.4th
115, 119.)
28
Here, DPSS’s inquiry was appropriate and complied with section 224.2. Mother
has not demonstrated there was a viable lead that would require DPSS “to make a
meaningful effort to locate and interview extended family members to obtain whatever
information they may have as to the child’s possible Indian status.” (In re K.R. (2018) 20
Cal.App.5th 701, 709.) Since both of Mother’s biological parents were deceased and
Mother had no information concerning any other relatives, DPSS could not contact
Mother’s parents or any other relatives to obtain additional ICWA information. In
addition, DPSS requested additional ICWA information from Mother. However, Mother
was unable to provide new or additional information concerning ICWA. Mother has not
demonstrated error, and reversal is not warranted under the circumstances of this case.
B. Compliance with the UCCJEA
Mother also argues that all orders on this matter must be reversed because the
juvenile court failed to comply with the UCCJEA. Specifically, she argues that
California did not have subject matter jurisdiction on the date DPSS filed its petition on
December 5, 2017, because California was not the children’s “‘home state’” and neither
Nevada nor Arizona5 had declined jurisdiction or been contacted. We disagree.
The UCCJEA (Family Code, § 3400 et seq.) is a uniform act drafted by the
National Conference of Commissioners on Uniform State Laws that has been adopted in
nearly all 50 states. It was adopted in California effective January 1, 2000. (In re
Cristian I. (2014) 224 Cal.App.4th 1088, 1096 (Christian I.).) The UCCJEA provides
5The record indicates that Father J.T. had lived in Arizona and Nevada and that
Mother had lived with Father J.T. prior to moving back to California.
29
“the exclusive method for determining the proper forum to decide custody issues
involving a child who is subject to a sister-state custody order. [Citations.]” (Ibid.; Fam.
Code, § 3421, subds. (a), (b).)
There are several pertinent provisions within the UCCJEA. First, Mother points to
the definition of “home state,” found in Family Code section 3402, subdivision (g), which
provides, in pertinent part: “‘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.” (Italics added.)
Family Code section 3421, subdivision (a), sets forth the circumstances under
which a California court is generally permitted to make an initial child custody
determination. It provides, in pertinent part: “(a) Except as otherwise provided in
[Family Code] [s]ection 3424, a court of this state has jurisdiction to make an initial child
custody determination 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
30
that this state is the more appropriate forum under [Family Code] [s]ection 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. [¶] . . . [¶]
“(4) No court of any other state would have jurisdiction under the criteria specified
in paragraph (1), (2), or (3).”
Family Code section 3424 provides an exception for emergency situations, such as
mistreatment or abuse of a child. Pursuant to Family Code section 3424, subdivision (a),
a court of this state has temporary emergency jurisdiction “if the child is present in this
state and the child has been abandoned or it is necessary in an emergency to protect the
child because the child . . . is subjected to, or threatened with, mistreatment or abuse.”
Although temporary jurisdiction is intended to be short term, “‘the juvenile court may
continue to exercise its authority as long as the reasons underlying the dependency exist.’
[Citations.]” (Cristian I., supra, 224 Cal.App.4th at p. 1097.) However, if a court of this
state has been asked to make a custody determination pursuant to the emergency
provision, “upon being informed that a child custody proceeding has been commenced in,
or a child custody determination has been made by, a court of a state having jurisdiction
31
under [Family Code] [s]ections 3421 to 3423, inclusive,” it must “immediately
communicate with the other court.” (Fam. Code, § 3424, subd. (d).)
A juvenile court’s determination as to its authority to exercise jurisdiction under
the UCCJEA may be raised on appeal for the first time. (In re Gloria A. (2013) 213
Cal.App.4th 476, 481.) We review the facts establishing jurisdiction for substantial
evidence. (In re Aiden L. (2017) 16 Cal.App.5th 508, 520.) The interpretation of the
UCCJEA is a question of law we review de novo. (Schneer v. Llaurado (2015) 242
Cal.App.4th 1276, 1287.)
Subject matter jurisdiction either exists or does not exist at the time an action is
commenced. It “cannot be conferred by stipulation, consent, waiver or estoppel.” (In re
Jaheim B. (2008) 169 Cal.App.4th 1343, 1348.) We find the juvenile court properly
asserted jurisdiction over the children.
Family Code section 3421, subdivision (a), gives a California court jurisdiction to
make an initial custody determination. Analysis of this section requires reference to
Family Code section 3402, subdivision (g), which defines the term “[h]ome state,” as a
state where a child lived with a parent, or a person acting as a parent, for at least six
consecutive months immediately before commencement of a child custody proceeding.
(Fam. Code, § 3402, subd. (g).) Here, Father J.T. reported that the children were with his
mother for more than one year and with him for approximately five months in Las Vegas
earlier in 2017. Mother thereafter came to visit and took both children to California.
There is no evidence of exactly when Mother took the children to California. A relative
32
informed the social worker that “the last time they have had contact with the children was
during the summer of 2017.” In addition, Father stated that he had the children for five
months in early 2017. This information is sufficient to show Mother had custody of the
children “for at least six consecutive months immediately before commencement of a
child custody proceeding.” (Fam. Code, § 3402, subd. (g).)
Furthermore, the children and Mother had significant connections with the state
beyond mere presence. Mother had been raised in California and her foster siblings
resided in California. In addition, Father and a relative stated that when Mother took the
children “back” to California during the summer of 2017, she and the children resided in
Indio, California. A.M. was born in California, and Father J.T. believed A.M. was
enrolled in an elementary school in Barstow, California. A.M. informed the social
worker that they lived with friends, and that he attended third grade at an elementary
school in Beaumont, California. Because the requirements of Family Code section 3421
were met, the juvenile court had jurisdiction to make an initial child custody
determination pursuant to this section.
Even if it did not have jurisdiction pursuant to Family Code section 3421, the
juvenile court had temporary emergency jurisdiction under Family Code section 3424.
Temporary emergency jurisdiction is available to a California court if the child is present
in this state and it is necessary to protect the child from mistreatment or abuse. (Fam.
Code, § 3424, subd. (a).) This provision is to be interpreted expansively. (Fam. Code,
33
§ 3424, subd. (e).) Mother does not argue that the circumstances present here do not
qualify for emergency jurisdiction.
Mother correctly points out that when a juvenile court exercises emergency
jurisdiction, “upon being informed that a child custody proceeding has been commenced
in, or a child custody determination has been made by, a court of a state having
jurisdiction under [Family Code] [s]ections 3421 to 3423, inclusive, [it] shall
immediately communicate with the other court.” (Fam. Code, § 3424, subd. (d).) While
there was some suggestion that a family law or child custody proceeding had commenced
in either Nevada or Arizona, DPSS did not obtain any information about any such
proceeding and specified that there were no family law orders in place.
Although Mother initially stated that there was a family law case open in Nevada,
she later clarified that there was not a pending family law proceeding. On December 26,
2017, Mother reported “she [was] unaware of whether or not there are family law orders
in place for her son,” J.T. On July 12, 2018, Mother further explained that she had
initially completed and submitted family law orders regarding J.T., because Father J.T.
was attempting to keep J.T. from her, but that she did not follow through with filing the
papers to obtain family law orders.
Furthermore, Father J.T., who would necessarily be a party to any such action, was
unaware of any family law or child custody proceedings in either Nevada or Arizona. On
December 21, 2017, Father J.T. reported that he had completed and submitted family law
orders regarding J.T., after Mother took J.T. during the summer of 2017. Father J.T. later
34
clarified that because Mother’s whereabouts were unknown to him, he was unable to
successfully serve her with the documents. He denied refiling the paperwork, due to
Mother moving to Barstow and her allowing him to see the children. Law enforcement
also informed Father J.T. that he had no grounds to claim Mother kidnapped the children
“since there was no court order from family law.”
There is no evidence that Mother was served with documents regarding child
custody proceedings, as she claims. Mother reported receiving some documents in the
mail a few days before her birthday in 2016, but stated the documents told her she did not
have to appear in court. She believed Father J.T. “did not appear either and child support
was established at that hearing.” Even if an order for child support was established at
that hearing, there is no evidence that child custody orders were made at that hearing.
Both parents stated that no such child custody order existed. Law enforcement also noted
that no family law orders were in effect as of the summer of 2017.
In the absence of actual judicial records from either Nevada or Arizona, or official
notice to Father J.T. or notice to Mother, the juvenile court was entitled to discredit the
parents’ vague references to family law proceedings in either Nevada or Arizona. Mother
has not made an offer of proof or affirmative assertion on appeal regarding the existence
of a relevant Nevada or Arizona proceeding. We therefore find, to the extent that the
juvenile court impliedly discredited the verbal, hearsay claim of a proceeding in Nevada
or Arizona, the evidence supports an implied factual finding that no such proceeding took
place. The court’s temporary emergency jurisdiction can ripen into continuing
35
jurisdiction where, as here, no other state with grounds for continuing jurisdiction exists.
(In re Gino C. (2014) 224 Cal.App.4th 959, 967 (Gino C.).)
In sum, the juvenile court had subject matter jurisdiction, and the orders need not
be vacated for lack of jurisdiction.
Moreover, any error in failing to comply with the UCCJEA was harmless.
“Failure to comply with the procedural requirements of the UCCJEA is subject to
harmless error analysis. [Citations.]” (Cristian I., supra, 224 Cal.App.4th at p. 1098.)
Under a harmless error analysis, no judgment can be reversed for ordinary error unless
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.” (People v. Watson (1956) 46 Cal.2d 818, 836; see Cristian I., at pp. 1098-
1099.)
We find Mother’s contention that the juvenile court erred in failing to comply with
the requirements of the UCCJEA harmless. Mother has not shown that she was
prejudiced either by the juvenile court’s failure to address UCCJEA, or to contact Nevada
or Arizona authorities. First, we have determined that California had jurisdiction
pursuant to Family Code section 3421. Because it had such jurisdiction, the court’s
failure to directly address the UCCJEA issue was harmless. Neither Nevada nor Arizona
qualified as the children’s home state, thus the juvenile court did not need to contact the
36
Nevada or Arizona court. Mother has not shown that, had the juvenile court specifically
addressed the UCCJEA, the juvenile court would have come to the conclusion that it did
not have jurisdiction, that it was required to contact Nevada or Arizona, or that it was
required to cede jurisdiction to Nevada or Arizona.
Even if the juvenile court’s jurisdiction were merely emergency jurisdiction, the
juvenile court was entitled to disregard the vague, verbal reference to a child custody
proceeding in Nevada or Arizona. In the absence of more concrete evidence of such a
proceeding, the juvenile court was not required to “communicate with the other court” as
set forth in Family Code section 3424, subdivision (d). (See, e.g., In re R.L. (2016) 4
Cal.App.5th 125, 145 [harmless error for the juvenile court not to contact a Mexican
court, where the juvenile court properly asserted temporary emergency jurisdiction, and
no child custody action was filed in Mexico].) We note that in the absence of a court
order or other official court document, the juvenile court would not know what court to
contact. Mother had ample opportunity to provide such evidence in this proceeding, and
has failed to do so.
Mother cites several cases in which a juvenile court’s failure to comply with the
requirements of the UCCJEA have been considered reversible error. These cases are
factually distinguishable.
37
In Gino C., Mexico was the children’s home state because the children had lived
there for six consecutive months immediately preceding the filing of the case. (Gino C.,
supra, 224 Cal.App.4th at pp. 964-965.) The juvenile court declined to contact Mexico,
despite its knowledge that Mexico was the children’s home state. Thus, the juvenile
court did not have jurisdiction under Family Code section 3421, subdivision (a). While it
had temporary emergency jurisdiction, the juvenile court’s orders could not become final
unless Mexico affirmatively declined to exercise its home state jurisdiction. (Gino C., at
p. 966.) The judgment was therefore reversed, and remanded for further proceedings.
(Id. at p. 968.) Here, unlike in Gino C., there is insufficient evidence to show either
Nevada or Arizona was the children’s home state.
Similarly, in In re A.M. (2014) 224 Cal.App.4th 593, the father and children lived
in Tijuana for at least six months before child protective services in California filed a
petition on the children’s behalf. The children were detained when their mother was
arrested as she attempted to smuggle drugs across the border with the children in the car.
(Id. at p. 596.) While the juvenile court properly assumed temporary emergency
jurisdiction, the matter was remanded to provide notice to Mexican authorities and
inquire whether Mexico wished to commence proceedings to protect the children. (Id. at
pp. 599-600.) Again, the matter is distinguishable because Mexico was unquestionably
the children’s home state.
Based on the foregoing, the juvenile court properly exercised subject matter
jurisdiction.
38
IV
DISPOSITION
The judgment is affirmed.
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
39
Filed 4/2/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M. et al., Persons Coming Under
the Juvenile Court Law.
E073805
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. RIJ1700999)
Plaintiff and Respondent,
v. ORDER CERTIFYING OPINION
A.M., FOR PUBLICATION
Defendant and Appellant.
The court has reviewed a request filed March 17, 2020, to publish the
nonpublished opinion filed in the above matter March 5, 2020. The request is
GRANTED. The opinion meets the standards for publication as specified in California
Rules of Court, rule 8.1105(c)(4), (6), and (7).
IT IS SO ORDERED that said opinion be certified for partial publication pursuant
to California Rules of Court, rule 8.1105(b).
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part III.B.
1
In re A.M.
Combined Opinion