Filed 9/19/13 In re Adolfo M. CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA

In re ADOLFO M., a Person Coming
Under the Juvenile Court Law.
                                                                   D063789
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                   (Super. Ct. No. SJ12887)
         Plaintiff and Respondent,

         v.

ALYSSA M.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Reversed and remanded with directions.



         Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
       This case involves the applicability of the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.).1 Alyssa M. appeals a judgment

declaring her minor son, Adolfo M., a dependent of the juvenile court and removing him from

parental custody, contending the court erred by asserting subject matter jurisdiction under

section 3421, subdivision (a)(2). We conclude the UCCJEA controls the jurisdictional analysis

the court must undertake before it can properly make its dependency findings and orders. We

reverse the judgment and remand the matter to the juvenile court to conduct a hearing on

subject matter jurisdiction in accordance with the UCCJEA.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In March 2013, Alyssa crossed the border from Mexico to San Diego, California, with

her six-year-old son Adolfo. She turned herself in to law enforcement authorities on an

outstanding arrest warrant for a drug-related crime. Alyssa, who was born and raised in the

state of Washington, said she had been living in Mexico, was currently homeless, and had been

using methamphetamine for the past year. She also said her current relationship with Cesar C.

involved domestic violence. Alyssa initially reported she had no relatives in the United States

or Mexico who could care for Adolfo. She was taken to Las Colinas Detention Facility and

Adolfo was taken to Polinsky Children's Center.

       Adolfo told the social worker that Alyssa worked "where they sell beer to men and then

she takes them somewhere." He said Alyssa and Cesar smoked light bulbs with dust or sand in

them. He also said Alyssa and Cesar fight, which made him sad and caused him to cry.




1      All further statutory references are to the Family Code unless otherwise specified.
                                                 2
       The San Diego County Health and Human Services Agency (Agency) filed a petition in

the juvenile court under Welfare and Institutions Code section 300, subdivision (b),2 alleging

Adolfo was at substantial risk of harm because Alyssa had been using and selling

methamphetamine for the past year, and had been hiding with Adolfo in an abandoned home to

avoid being arrested. The petition listed Cesar and another man, Antonio S., as Adolfo's

alleged fathers, both of whom lived in Mexico.

       At a detention hearing, counsel for Alyssa argued that under the UCCJEA, Mexico was

Adolfo's home state and, thus, the court lacked subject matter jurisdiction unless it had

temporary emergency jurisdiction. Counsel further argued there was no emergency because

Adolfo was not in immediate danger when he was taken from Alyssa. The court disagreed,

finding Adolfo was at risk because Alyssa and Cesar used drugs, and, thus, the court had

jurisdiction. The court then asked Alyssa whether there were any custody or visitation orders,

or any family court proceedings, involving Adolfo in Mexico. Alyssa answered, "No,

nothing." The court proceeded to make its findings and detained Adolfo in out-of-home care.

When Alyssa's counsel asked for clarification about whether the court was taking temporary

emergency jurisdiction, the court said it was finding the UCCJEA did not apply.

       According to a jurisdiction report, Adolfo was living in a foster home and doing well.

Adolfo told the social worker that Cesar had physically abused him, and Alyssa corroborated

this statement. Alyssa, who was no longer incarcerated, said she would like Adolfo placed

with a relative in San Diego. The maternal grandmother in Washington also expressed interest



2     Agency also filed a petition under Welfare and Institutions Code section 300,
subdivision (g), but that allegation was later dismissed.
                                                  3
in having Adolfo placed with her. Alyssa was regularly visiting Adolfo and began

participating in services, including a residential substance abuse treatment program.

       At a jurisdiction and disposition hearing, the court again addressed the applicability of

the UCCJEA, and expressly declined to take temporary emergency jurisdiction under section

3424, subdivision (b). Because no court in any other state or country had asserted jurisdiction

over Adolfo, the court found it had subject matter jurisdiction under section 3421, subdivision

(a)(2). The court sustained the allegations of the petition under Welfare and Institutions Code

section 300, subdivision (b), declared Adolfo a dependent, removed him from Alyssa's

custody, placed him in foster care and ordered Alyssa to comply with the provisions of her

case plan.

                                         DISCUSSION

       Alyssa contends the court erred by asserting subject matter jurisdiction under section

3421, subdivision (a)(2), because Mexico, not California, was Adolfo's home state. County

counsel concedes the error, but asserts it was harmless because the court could have properly

exercised temporary emergency jurisdiction under section 3424.

                                                A

                                    Overview of the UCCJEA

       The UCCJEA is the exclusive method in California to determine the proper forum in

child custody proceedings involving other jurisdictions. (In re C.T. (2002) 100 Cal.App.4th

101, 106.) "Under the UCCJEA, a California court must 'treat a foreign country as if it were a

state of the United States for the purpose of' determining jurisdiction. (§ 3405, subd. (a).)" (In

re Marriage of Nurie (2009) 176 Cal.App.4th 478, 490.) A dependency action is a " '[c]hild


                                                4
custody proceeding' " subject to the UCCJEA. (§ 3402, subd. (d); In re Angel L. (2008) 159

Cal.App.4th 1127, 1136.) The purposes of the UCCJEA in the context of dependency

proceedings include avoiding jurisdictional competition and conflict, promoting interstate

cooperation, litigating custody where the child and his or her family have the closest

connections, avoiding relitigation of another state's custody decisions and promoting the

exchange of information and other mutual assistance between courts of other states. (In re

C.T., at p. 106.)

       Subject matter jurisdiction either exists or does not exist at the time the action is

commenced and cannot be conferred by stipulation, consent, waiver or estoppel. (In re A.C.

(2005) 130 Cal.App.4th 854, 860.) "We are not bound by the juvenile court's findings

regarding subject matter jurisdiction, but rather 'independently reweigh the jurisdictional

facts.' " (Ibid.)

                             Section 3421—Home State Jurisdiction

       Under section 3421, California may assume jurisdiction to make an initial child custody

determination only if any of the following apply: California is the child's "home state,"

meaning 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 child custody proceeding was commenced

(§§ 3421, subd. (a)(1) & 3402, subd. (g)); a court of another state does not have jurisdiction

because it is not the child's home state (§ 3421, subd. (a)(2)); a court of the child's home state

has declined to exercise jurisdiction on the ground California is the more appropriate forum

(ibid.); all courts having jurisdiction have declined to exercise jurisdiction on the ground

California is the more appropriate forum (§ 3421, subd. (a)(3)); or no other state has


                                                 5
jurisdiction under the foregoing tests (§ 3421, subd. (a)(4)). "Physical presence of, or personal

jurisdiction over, a party or a child is not necessary or sufficient to make a child custody

determination." (§ 3421, subd. (c).)

                                                 C

                       Section 3424—Temporary Emergency Jurisdiction

       Section 3424 provides an exception to the exclusive jurisdictional bases for making a

child custody determination in California. (§ 3421, subds. (a) & (b).) A court may exercise

"temporary emergency jurisdiction" when a "child is present in this state and . . . it is necessary

in an emergency to protect the child because the child . . . is subjected to, or threatened with,

mistreatment or abuse." (§ 3424, subd. (a).) An "emergency" exists when there is an

immediate risk of danger to the child if he or she is returned to a parent. (In re Nada R. (2001)

89 Cal.App.4th 1166, 1174-1175.) Although emergency jurisdiction is generally intended to

be short term and limited, the juvenile court may continue to exercise its authority as long as

the reasons underlying the dependency exist. (Id. at p. 1175; In re Angel L., supra, 159

Cal.App.4th at p. 1139; see also In re Stephanie M. (1994) 7 Cal.4th 295, 312 [court had

continuing jurisdiction because of emergency presented and impossibility of returning minor

immediately to parents].) The Legislature has expressly declared its intent to expand the

grounds on which a court may exercise temporary emergency jurisdiction. (§ 3424, subd. (e).)

       Nevertheless, even an appropriate "[a]ssumption of emergency jurisdiction does not

confer upon the state exercising emergency jurisdiction the authority to make a permanent

custody disposition." (In re C.T., supra, 100 Cal.App.4th at p. 108.) Section 3424, subdivision

(b), provides that when "there is no previous child custody determination that is entitled to be


                                                 6
enforced under the UCCJEA and a child custody proceeding has not been commenced in a

court of a state having jurisdiction under the UCCJEA, a child custody determination made

under section [3424] remains in effect until an order is obtained from a court of a state having

jurisdiction under the UCCJEA. 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 made under section 3424, subdivision (b) 'becomes a final determination, if it so

provides and this state becomes the home state of the child.' " (In re Angel L., supra, 159

Cal.App.4th at p. 1138, quoting § 3424, subd. (b).) Thus, the statutory language makes clear

that emergency jurisdiction can be exercised to protect a child only on a temporary basis until

the court with appropriate jurisdiction issues a permanent order or, alternatively, until the court

exercising emergency jurisdiction finds a basis to "properly assume jurisdiction under section

[3421 or] 3423 apart from its emergency jurisdiction under section 3424." (In re C.T., supra,

100 Cal.App.4th at pp. 113, 112.)

                                                D

                  The Court Improperly Asserted Subject Matter Jurisdiction
                           Under Section 3421, Subdivision (a)(2)

       Here, the court expressly declined to assert temporary emergency jurisdiction under

section 3424. Instead, the court asserted subject matter jurisdiction under section 3421,

subdivision (a)(2), which provides that the California court has jurisdiction to make an initial

child custody determination if the court of another state (or foreign country) does not have

"home state" jurisdiction or has declined to exercise jurisdiction on the ground California is the




                                                 7
more appropriate forum based on certain criteria.3 However, the undisputed evidence here

showed Mexico had home state jurisdiction because Adolfo had lived there with Alyssa for at

least six consecutive months immediately before the dependency proceedings began. (§ 3402,

subd. (g).) Further, the court in Mexico did not decline to exercise jurisdiction as Adolfo's

home state because it was never given notice or the opportunity to do so. (§ 3421, subd.

(a)(2).)

       In asserting subject matter jurisdiction under section 3421, subdivision (a)(2), the court

presumably believed it could proceed based on Alyssa's unsworn testimony that there were no

custody or visitation orders or family court proceedings in Mexico involving Adolfo.4

However, regardless of whether a proceeding has commenced in another jurisdiction, the

child's home state must be given the opportunity to either assume or decline jurisdiction. In

this regard, the court purporting to assert subject matter jurisdiction is authorized to

communicate with the court in the home state. (§ 3410, subd. (a).) The juvenile court here

made no attempt to contact the court in Mexico or otherwise verify Alyssa's statement as to the

existence of any custody orders or proceedings in Mexico. It also failed to hold a hearing at

which the parties could present evidence and cross-examine witnesses to enable the court to



3      The home state court can decline to exercise jurisdiction if it finds California is the
more appropriate forum under section 3427 (home state is an inconvenient forum under the
circumstances) or section 3428 (person seeking to invoke jurisdiction has engaged in
unjustifiable conduct) and both of the following are true: (1) the child and his or her parent or
parents have a significant connection with California other than mere physical presence; and
(2) substantial evidence is available in California concerning the child's care, protection,
training and personal relationships. (§ 3421, subd. (a)(2)(A) & (B).)

4      As we previously noted, a child's physical presence in a state, without more, is not
sufficient for the court to make a custody determination. (§ 3421, subd. (c).)
                                                8
determine whether California or Mexico had subject matter jurisdiction under the UCCJEA.

Under these circumstances, the juvenile court erred by exercising subject matter jurisdiction,

and the error cannot be deemed harmless. (See In re Marriage of Jackson (2006) 136

Cal.App.4th 980, 997 [if jurisdictional error has occurred, the resulting judgment or order is

voidable and reversible on appeal even where it is clear from the record that no prejudice

resulted].)

                                                E

                        The Record Does Not Permit an Inference the
                        Court Had Temporary Emergency Jurisdiction

       Agency concedes the court erroneously asserted subject matter jurisdiction under

section 3421, subdivision (a)(2), but nevertheless contends the court had temporary emergency

jurisdiction under section 3424. We agree the facts here showed that at the time the

dependency petition was filed, Adolfo would have been at immediate risk of harm if returned

to parental custody because Alyssa used and sold methamphetamine for the past year, exposed

Adolfo to domestic violence and allowed Adolfo's only other caregiver, Cesar, to physically

abuse him. (§ 3424, subd. (a); see In re Nada R., supra, 89 Cal.App.4th at pp. 1174-1175.)

However, Agency's argument that the court had the power to proceed under section 3424 is

based on the faulty premise that there was no competing custody order entered in Mexico and

no jurisdictional conflict with the Mexican court. As we previously discussed, the record

contains no admissible evidence as to whether there was a previous child custody

determination or pending custody proceeding in Mexico, and no proper inquiry was made. In




                                                9
the absence of that information, we cannot conclude the juvenile court was entitled to assert

temporary emergency jurisdiction.5

                                        DISPOSITION

       The judgment is reversed. The case is remanded to the juvenile court with directions to

hold a hearing at which the parties may present evidence and cross-examine witnesses

regarding whether California or Mexico has subject matter jurisdiction under the UCCJEA, or

whether California has temporary emergency jurisdiction.



                                                                               MCDONALD, J.

WE CONCUR:



NARES, Acting P. J.



AARON, J.




5      If, on remand, the court in Mexico declines jurisdiction or determines that California
would be a more convenient forum under section 3421, subdivision (a)(2), the issue of
temporary emergency jurisdiction will be moot and the juvenile court can proceed to make its
jurisdictional findings and dispositional order.
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