Filed 8/11/20
                       CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                         DIVISION TWO



 In re J.W. et al., Persons Coming Under
 the Juvenile Court Law.

 SAN BERNARDINO COUNTY
 CHILDREN AND FAMILY SERVICES,                        E074079

            Plaintiff and Respondent,                 (Super.Ct.Nos. J-268832 & J-
                                                      268833)
 v.
                                                      OPINION
 D.S. et al.,

            Defendants and Appellants.


        APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

        Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant

and Appellant A.W.

        Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and

Appellant D.S.




        *  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part II.

                                              1
       Michelle D. Blakemore, County Counsel, Michael A. Markel, Principal Assistant

County Counsel, Jamila Bayati and David R. Guardado, Deputy County Counsel for

Plaintiff and Respondent.

       In this appeal, we conclude that the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.), which governs which state is to

entertain a dependency case, is a mandatory rule, but nevertheless does not regulate a
                                                   1
California trial court’s fundamental jurisdiction. For this reason, it can be forfeited by a

failure to raise the issue in juvenile court, as was the case here.

                      I. FACTUAL AND PROCEDURAL HISTORY

       This juvenile dependency appeal follows the termination of parental rights over

two half-sisters. A.W., the father of only the younger daughter, contends that the juvenile

court failed to comply with the UCCJEA, such that Louisiana should have been the

forum for the case. In addition, D.S. (Mother), the mother of both children, contends that

the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25

U.S.C. § 1901 et seq.), which pertains to dependency proceedings involving children who
                 2
may be Indian.

       The case began when, in December 2016, plaintiff and respondent San Bernardino

Children and Family Services (CFS) learned that Mother had threatened to physically

       1
           Undesignated statutory references are to the Family Code.
       2
         Because ICWA uses the term “Indian,” we do the same for consistency, even
though we recognize that other terms, such as “Native American” or “indigenous,” are
preferred by many.

                                               2
abuse J.W., the younger daughter, then one year old. Mother had called 911 and

threatened to stab herself and J.W. Police officers detained Mother and temporarily

committed her pursuant to Welfare and Institutions Code section 5150.

       CFS’s detention reports stated that, just a few weeks prior, Mother had moved to

California from Louisiana, where she had been living with A.W. (A later psychological

evaluation specified that Mother had moved from Louisiana earlier that same month,

December 2016.) According to a family friend, Mother was spiraling into depression in

Louisiana and had mentioned relinquishing her children to the Louisiana Department of

Children and Family Services. The family friend accordingly urged Mother to come live

with her in California, which she did. The family friend also informed CFS that in 2010

Mother had suffered traumatic brain injuries requiring dozens of surgeries, from a car

accident that killed Mother’s mother and sister. Since the accident, Mother had suffered

from grand mal seizures and had been diagnosed with schizophrenia.

       CFS filed Welfare and Institutions Code section 300 petitions for J.W. and her

older, nine-year-old sister L.M. Both petitions alleged failure to protect the child

pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), and L.M.’s

petition also alleged that the child had been left without any provision for support

pursuant to Welfare and Institutions Code section 300, subdivision (g). At the December

27, 2016, detention hearing, the juvenile court found a prima facie case and detained the

children. Although the detention reports noted Mother’s recent move from Louisiana,




                                             3
CFS did not address whether there was jurisdiction under the UCCJEA, and the juvenile

court made no finding concerning the UCCJEA.

       At a combined jurisdictional and dispositional hearing in February 2017, the

juvenile court found the allegations in both petitions true and ordered family reunification

services for Mother and A.W. The juvenile court found it was not in L.M.’s best interest

for family reunification services to be offered to her father D.M. The juvenile court

found that ICWA did not apply. CFS’s jurisdictional/dispositional report again did not

raise, and the juvenile court did not address, UCCJEA jurisdiction. Similarly, UCCJEA

jurisdiction was not raised or addressed when A.W. made his first appearance at the 12-

month review hearing in February 2018.

       Because Mother and A.W. challenge only ICWA and UCCJEA deficiencies, we

need not describe in detail the parents’ subsequent progress. Family reunification

services were terminated at the 18-month review hearing and parental rights were later

terminated at a November 2019 Welfare and Institutions Code section 366.26 hearing.

                                        II. ICWA

A. Additional Background

       Counsel for L.M.’s father D.M. (who is not a party to this appeal) stated at a June

2018 hearing that D.M. might have Indian ancestry on his mother’s side. D.M. submitted

forms indicating he may have Indian ancestry but did not know which tribes in particular.

At the hearing, the juvenile court asked the social worker “to follow up with [D.M.’s]




                                             4
mother” to attempt to identify tribes and ordered D.M. “to keep the social worker advised

of any information relating to possible Indian ancestry” he may obtain.

       The following month, CFS informed the juvenile court the following: “‘[D.M.]

stated he does not have any ICWA. He stated that he had heard from family members

that the family did have ICWA and [D.M.] was informed that was not accurate. He

regretted telling the Court that he had ICWA stating, [‘]Saying I had ICWA has caused

me too many problems’.” At a hearing a few days later, CFS confirmed that D.M. “really

has no knowledge of any Indian ancestry at present.”

       Two months later, D.M. submitted a form ICWA-020 (Parental Notification of

Indian Status), checking the box next to the statement “I have no Indian ancestry as far as

I know.” At the 18-month review hearing that same month, D.M. had the following

exchange with the juvenile court:

       “THE COURT: Now, as to [D.M.] —all right. I understand with respect to

[D.M.], that he is uncertain as to Native American ancestry; is that correct?

       “[D.M.]: Yes.

       “THE COURT: So you’re not aware of a specific tribe?

       “[D.M.]: No. I mean—I’m sorry. Basically, I’m not sure. [¶] I don’t think I

have Indian in me at all. [¶] . . . [¶]

       “[THE COURT]: So, [D.M.], what I want to be clear on, however, is that I saw a

statement that the social worker quoted you saying, ‘Gee, I just raised all sorts of

problems by saying, “I may have Native Indian ancestry.[”] So I shouldn’t have done



                                              5
that,’ in essence. [¶] So what I don’t want to have happen is that you’re indicating,

‘Yeah, there probably is and I’— ‘but, you know it causes too much of a hassle, so let’s

just stop it.’ And I don’t want that to be your response. And here’s why, because if you

can tell me today as you sit here that it is an accurate statement that you have no Indian

ancestry as far as [you] know—

       “[D.M.]: Yeah.

       “THE COURT:—we’re good to go. [¶] But if you have information, if you have

an understanding from family or otherwise that you may have Indian ancestry—

       “[D.M.]: As far as I know, I don’t.

       “THE COURT: And do you have any family members present today?

       “[D.M.]: No.

       “THE COURT: All right. So, again, that’s an accurate statement, ‘I have no

Indian ancestry as far as I know.’

       “[D.M.]: Correct.

       “THE COURT: You have to answer verbally.

       “[D.M.]: Yes, sir.

       “THE COURT: All right. Then, the Court will go ahead and accept the

notification of Indian status. And we will file it as of today’s date.”

B. Analysis

       Mother contends that CFS did not satisfy its duty of inquiry with regard to D.M.

We disagree.



                                               6
       “Juvenile courts and child protective agencies have ‘an affirmative and continuing

duty to inquire’ whether a child for whom a [Welfare and Institutions Code] section 300

petition has been filed is or may be an Indian child.” (In re N.G. (2018) 27 Cal.App.5th

474, 481.) “If the court or social worker ‘knows or has reason to know’ the child is or

may be an Indian child, the social worker ‘is required to make further inquiry regarding

the possible Indian status of the child, and to do so as soon as practicable, by interviewing

the parents, Indian custodian, and extended family members’ and ‘any other person that

reasonably can be expected to have information regarding the child’s membership status

or eligibility.’” (Ibid.)

       Here, the record does not show that CFS ever interviewed D.M.’s mother

regarding Indian ancestry despite being told to do so by the juvenile court. However,

CFS no longer needed to interview D.M.’s mother after D.M. stated that his

understanding that his family might have Indian ancestry was not accurate. (See In re

C.A. (2018) 24 Cal.App.5th 511, 519 [duty of inquiry satisfied where a parent “initially

indicate[s] that he may have had Native American heritage [but later] explain[s] that he

had learned new information about his parents and did not have any Native American

heritage”].) Moreover, the fact that D.M. “regretted” telling the juvenile court that

ICWA might apply does not mean that CFS and the court were no longer entitled to rely

on D.M.’s repeated representations. “ICWA does not obligate the court or [child

protective agencies] ‘to cast about’ for investigative leads.” (In re A.M. (2020) 47

Cal.App.5th 303, 323.) Here, the duty of inquiry was satisfied when D.M. stated that as



                                             7
far as he knew he had no Indian ancestry, and when in response to the juvenile court’s

questioning, D.M. stated that his changed response was not due to any “hassle” ICWA

may have caused.

                                    III. The UCCJEA

A. Additional Background

       In approximately 2014, Mother moved with her daughter L.M. from California,

where they had lived for two years, to Louisiana. Mother lived in Louisiana for another

two years, and J.W. was born in Louisiana during that time. As far as the record reveals,

Mother has been living in California since the petitions were filed in December 2016.

       In the detention report, CFS stated that it spoke with A.W., who stated he was

living in Louisiana. A.W. was also listed as having a Louisiana address in the

jurisdictional/dispositional report and the six-month review report, but at some point

before the 12-month review report was filed, A.W. had moved to California into an

apartment he shared with Mother. A.W. has provided California addresses since then.

B. Analysis

       The UCCJEA is a model law that “arose out of a conference of states in an attempt

to deal with the problems of competing jurisdictions entering conflicting interstate child

custody orders, forum shopping, and the drawn out and complex child custody legal

proceedings often encountered by parties where multiple states are involved.” (In re

Custody of A.C. (Wash. 2009) 165 Wn.2d 568, 574, fn. omitted; see also In re Gloria A.

(2013) 213 Cal.App.4th 476, 482 [purpose of the UCCJEA is to “avoid jurisdictional



                                             8
competition between states or countries, promote interstate cooperation, avoid relitigation

of another state’s or country’s custody decisions and facilitate enforcement of another

state’s or country’s custody decrees”].) To date, every state except Massachusetts has

enacted the UCCJEA, and the District of Columbia and the United States Virgin Islands

have enacted it as well. (See National Conference of Commissioners on Uniform State

Laws, Uniform Child Custody Jurisdiction and Enforcement Act (1997), Editors’ Notes.)

California adopted the UCCJEA effective January 1, 2000, and it is codified in section
                                                                 3
3400 et seq. (See In re C.T. (2002) 100 Cal.App.4th 101, 106.)

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

forum in child custody proceedings involving other jurisdictions.” (In re Jaheim B.

(2008) 169 Cal.App.4th 1343, 1348; see also § 3421, subd. (b) [§ 3421, subd. (a) “is the

exclusive jurisdictional basis for making a child custody determination by a court of this

state”].) “A dependency action is a ‘“child custody proceeding”’ subject to the

UCCJEA.” (In re Jaheim B., supra, 169 Cal.App.4th at p. 1348.) “[A]s with any statute,

interpretation of the UCCJEA is a question of law we review de novo.” (Schneer v.

Llaurado (2015) 242 Cal.App.4th 1276, 1287.)

       A.W. contends for the first time on appeal that the juvenile court lacked

jurisdiction under the UCCJEA and that, as a result, all findings and orders made by the

juvenile court as to J.W. must be reversed. We decline to address this contention on the


       3
         When we use the term UCCJEA, we refer to either the law as enacted in
California, the model law, or the law as enacted in another state, depending on the
context.

                                             9
merits. Instead, we hold that, even assuming the juvenile court lacked UCCJEA

jurisdiction, A.W. has forfeited the ability to raise the argument here. Forfeiture would

not apply if the UCCJEA provisions governing jurisdiction implicated the courts’
                                                             4
fundamental jurisdiction, but, as we explain, they do not.

       1. Kabran and Fundamental Jurisdiction

       In Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330 (Kabran), our

Supreme Court emphasized the difference between a court’s fundamental jurisdiction and

the mandatory jurisdictional rules that the court must apply. The court explained that the

label “jurisdiction” has multiple meanings: “‘“When courts use the phrase ‘lack of

jurisdiction,’ they are usually referring to one of two different concepts, although . . . the

distinction between them is ‘hazy.’” [Citation.]’ [Citation.] A lack of fundamental

jurisdiction is ‘“‘“‘an entire absence of power to hear or determine the case, an absence

of authority over the subject matter or the parties.’ [Citation.] . . . ” [¶] “[F]undamental

jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a

court’s jurisdiction in the fundamental sense is null and void” ab initio. [Citation.]

“Therefore, a claim based on a lack of . . . fundamental jurisdiction[] may be raised for

the first time on appeal. [Citation.]”’ [Citation.] Likewise, ‘a collateral attack on a final


       4
          Our reasoning here differs from the forfeiture argument asserted by CFS in its
brief. The case CFS focuses on, In re A.C. (2017) 13 Cal.App.5th 661, applied forfeiture
to a “procedural error”—specifically, a purported failure to authenticate e-mails. (See id.
at pp. 671-672.) We would not label the juvenile court’s failure to address UCCJEA
jurisdiction at all here a mere procedural error. As noted above, the detention reports
stated that Mother had recently moved to California from Louisiana, yet UCCJEA
jurisdiction was never raised by the parties nor expressly determined by the court.

                                              10
judgment may be made at any time when the judgment under challenge is void because of

an absence of “fundamental jurisdiction.”’”” (Id. at p. 339.)

       Apart from distinguishing rules by whether they implicate fundamental

jurisdiction, “[i]n interpreting statutory requirements, courts have also used the terms

‘mandatory’ and ‘directory.’ Whether a requirement is mandatory or directory is

determined largely by its effect: ‘If the failure to comply with a particular procedural

step does not invalidate the action ultimately taken, . . . the procedural requirement is

referred to as “directory.” If, on the other hand, it is concluded that noncompliance does

invalidate subsequent action, the requirement is deemed “mandatory.”’” (Kabran, supra,

2 Cal.5th at p. 340.)

       The fact that a jurisdiction requirement is mandatory, however, does not mean that

it implicates fundamental jurisdiction. Kabran held that “a party’s failure to comply with

a mandatory requirement ‘does not necessarily mean a court loses fundamental

jurisdiction resulting in “an entire absence of power to hear or determine the case, an

absence of authority over the subject matter or the parties.”’ [Citation.] It is a ‘misuse of

the term “jurisdictional” . . . to treat it as synonymous with “mandatory”’ as a general

matter. [Citation.] ‘There are many time provisions, e.g., in procedural rules, that are not

directory but mandatory; these are binding, and parties must comply with them to avoid a

default or other penalty. But failure to comply does not render the proceeding void’ in a

fundamental sense. [Citations.] The [United States Supreme Court] has similarly




                                             11
recognized, as a matter of federal law, that ‘mandatory’ rules should not always ‘be given

the jurisdictional brand.’” (Kabran, supra, 2 Cal.5th at p. 341.)

       Thus, as Kabran summarized, “jurisdictional rules are mandatory, but mandatory

rules are not necessarily jurisdictional. Noncompliance with a mandatory rule can result

in invalidation of the action so long as the noncompliance is properly raised; a party can

forfeit its challenge to the noncompliance by failing to object. Noncompliance with a

jurisdictional rule cannot be excused or forfeited; a party may assert such noncompliance

for the first time on appeal or in a collateral attack as a ground for invalidating the

action.” (Kabran, supra, 2 Cal.5th at p. 342.)

       “‘There is “‘no simple, mechanical test’”’” for determining whether a specific

requirement is jurisdictional or not, but “[t]he question is ultimately one of legislative

intent.” (Kabran, supra, 2 Cal.5th at p. 343; see also Garrison v. Rourke (1948) 32

Cal.2d 430, 435 [courts’ vested jurisdiction “may not lightly be deemed to have been

destroyed”], overruled on another ground in Keane v. Smith (1971) 4 Cal.3d 932, 939.)

       In then applying this framework, Kabran held that a provision in the Code of Civil

Procedure did not implicate fundamental jurisdiction and that, as a result, a party was

precluded from raising a violation of it for the first time on appeal. (Kabran, supra, 2

Cal.5th at p. 334.) As Kabran made clear, the only rules not subject to forfeiture are

those conferring fundamental jurisdiction.




                                              12
       2. The UCCJEA and Fundamental Jurisdiction

       It is clear enough that the rules governing jurisdiction in the UCCJEA are

mandatory. Given that the main goals of the UCCJEA include “avoid[ing] jurisdictional

competition [and] relitigation of another state’s or country’s custody decisions” (In re

Gloria A., supra, 213 Cal.App.4th at p. 482), ensuring that only one state exercise

jurisdiction at a time outside of emergencies is a crucial part of how the UCCJEA is

supposed to function. (See §§ 3421, 3424; City of Santa Monica v. Gonzalez (2008) 43

Cal.4th 905, 924 [“Invariably, ‘courts look to the procedure’s purpose or function. If the

procedure is essential to promote the statutory design, it is “mandatory” and

noncompliance has an invalidating effect.’”]; see also County of San Diego v. State of

California (1997) 15 Cal.4th 68, 87.)

       However, although the jurisdictional rules of the UCCJEA are mandatory, we are

not persuaded that the Legislature intended them to be used in California in a manner that

implicates a court’s fundamental jurisdiction. In this state, fundamental jurisdiction over

juvenile dependency cases such as this is governed by Welfare and Institutions Code

section 300, which states that a child described by that section “is within the jurisdiction

of the juvenile court.” (See, e.g., In re Z.S. (2015) 235 Cal.App.4th 754, 770; San

Joaquin County Human Services Agency v. Marcus W. (2010) 185 Cal.App.4th 182,

192; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410; see also Quigley v. Garden

Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 808 [“California’s superior courts are

courts of general jurisdiction, which means they are generally empowered to resolve the



                                             13
legal disputes that are brought to them.”]; Cal. Const., art. VI, § 10 [outside of

mandamus, certiorari, prohibition, and habeas corpus proceedings, “[s]uperior courts

have original jurisdiction in all . . . causes”].) Once a petition under Welfare and

Institutions Code section 300 is filed, the juvenile court is then ordinarily empowered to

evaluate the allegations contained in the petition and declare the minor a dependent of the

court.

         The UCCJEA, on the other hand, embodies an agreement among states on rules to

determine which jurisdiction should provide the proper forum. (See In re Custody of

A.C., supra, 165 Wn.2d at p. 574 [UCCJEA “arose out of a conference of states”]; cf.

Alexander v. Superior Court (2003) 114 Cal.App.4th 723, 727 [“a forum selection clause

usually chooses a court from among different states or nations”].) Because it is a

mandatory rule, a court errs when it does not satisfy the requirements of the UCCJEA,

and a preserved error can lead to reversal. (See Kabran, supra, 2 Cal.5th at p. 341;

People v. Lara (2010) 48 Cal.4th 216, 228 [noting that mandatory rules are not subject to

“good cause” exceptions].) But where, as here, the UCCJEA is not raised in the juvenile

court, it can be forfeited just like other important, mandatory rules. (See Kabran, at p.

334.)

         Another case from our Supreme Court offers a compelling analogy to our

reasoning. In County of San Diego v. State of California, supra, 15 Cal.4th, 68, 85-90

(County of San Diego), the court considered the effect of violating statutory procedures

enacted to determine through a “test claim” which forum was to apply section 6 of article



                                             14
XIII B of the California Constitution (section 6) to a matter. Like the UCCJEA, these

procedures sought to eliminate the problem of multiple and conflicting proceedings in

different courts, although within California. Generally, section 6 requires that “the state

reimburse local governments for costs incurred when the state enlists their assistance in

implementing a state program.” (County of San Diego v. Commission on State Mandates

(2018) 6 Cal.5th 196, 207.) County of San Diego explained that “‘the Legislature enacted

comprehensive administrative procedures for resolution of claims arising out of section 6

. . . because the absence of a uniform procedure had resulted in inconsistent rulings on the

existence of state mandates, unnecessary litigation, reimbursement delays, and,

apparently, resultant uncertainties in accommodating reimbursement requirements in the

budgetary process.’” (County of San Diego, supra, 15 Cal.4th at p. 86.) Specifically, the

Legislature “‘establishe[d] a test-claim procedure to expeditiously resolve disputes

affecting multiple agencies’” “‘for the express purpose of avoiding multiple proceedings

. . . addressing the same claim that a reimbursable state mandate has been created.’”

(Ibid.)

          Although it did not use the term, County of San Diego effectively determined that

the rule against multiple proceedings was mandatory, as “[a] contrary conclusion would

undermine one of ‘the express purpose[s]’ of the statutory procedure: to ‘avoid[]

multiple proceedings . . . addressing the same claim that a reimbursable state mandate has

been created.’” (County of San Diego, supra, 15th Cal.4th at p. 87; see City of Monica v.

Gonzalez, supra, 43 Cal.4th at p. 924 [“‘If the procedure is essential to promote the



                                              15
statutory design, it is ‘mandatory’ and noncompliance has an invalidating effect.’”].) It

therefore held that the trial court “should not have proceeded to resolve San Diego’s

claim for reimbursement under section 6 while the [earlier] Los Angeles action was

pending.” (County of San Diego, supra, at p. 87.)

       However, the court rejected the “assertion that the error was jurisdictional.”

(County of San Diego, supra, 15 Cal.4th at p. 87.) Citing the rule that vested jurisdiction

“‘may not lightly be deemed to have been destroyed’” and “find[ing] no statutory

provision that either ‘expressly provide[s]’ [citation] or otherwise ‘clearly indicate[s]

[citation] that the Legislature intended to divest all courts other than the court hearing the

test claim” of fundamental jurisdiction, County of San Diego held that the trial court’s

“erroneous refusal to stay further proceedings [did] not render those further proceedings

void” for lack of fundamental jurisdiction. (Id. at pp. 87-88.)

       County of San Diego thus concluded in effect that the test claim procedure, which

sought to prevent “unnecessary” and “multiple” proceedings, “inconsistent rulings,” and

“delays” of relief, was a mandatory rule, but not one implicating fundamental

jurisdiction. (County of San Diego, supra, 15 Cal.4th. at pp. 86-87; see also Barquis v.

Merchants Collection Assn. (1972) 7 Cal.3d 94, 119-122 [although “prime purpose” of a

“mandatory venue provision” was to “protect absent defendants from default judgments

obtained in improper counties,” provision accomplishes its purpose “not by rendering

void all judgments obtained in improper counties, but by placing an independent

responsibility on the trial court to scrutinize all complaints, even when no change of



                                              16
venue motion is filed”]; People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20

Cal.App.4th 760, 770, 772 [the “rule of exclusive concurrent jurisdiction,” which is

“‘based upon the public policies of avoiding conflicts that might arise between courts if

they were free to make contradictory decisions or awards relating to the same

controversy, and preventing vexatious litigation and multiplicity of suits,’” is “not

‘jurisdictional’ in the sense that failure to comply renders subsequent proceedings void”],

cited in County of San Diego, at p. 88.)

       It is conceivable that in some context, the Legislature could intend that a forum

selection statute create fundamental jurisdiction, unlike in County of San Diego. But we

do not think that this could be so in the juvenile dependency context at issue here. In

dependency law, our Legislature has placed a particular emphasis on the need to make

orders terminating parental rights final. This leads us to conclude that, as with the forum

selection statutes in County of San Diego, the Legislature did not intend to make

UCCJEA jurisdiction a matter of fundamental jurisdiction on top of the fundamental

jurisdiction established by Welfare and Institutions Code section 300 in standard

dependency cases. Specifically, Welfare and Institutions Code section 366.26,

subdivision (i) prohibits virtually all collateral attacks on termination orders, evincing a

clear intent to restrict their review. But equating UCCJEA jurisdiction with fundamental

jurisdiction would constitute a wide exception to the finality afforded by this provision,

as a meritorious claim of UCCJEA error could undo a termination order despite the

failure to raise the issue in juvenile court.



                                                17
       Welfare and Institutions Code section 366.26, subdivision (i)(1) states: “Any

order of the court permanently terminating parental rights under this section shall be

conclusive and binding upon the child, upon the parent or parents and, upon all other

persons who have been served with citation by publication or otherwise as provided in

this chapter. After making the order, the juvenile court shall have no power to set aside,

change, or modify it, except as provided in paragraph (2), but nothing in this section shall

be construed to limit the right to appeal the order.” (Italics added.) Paragraph (2)

provides a narrow exception for tribal customary adoptions, not applicable here.

       By operation of its express terms, Welfare and Institutions Code section 366.26,

subdivision (i) prohibits virtually all collateral attacks on orders terminating parental

rights. (See In re Zeth S. (2003) 31 Cal.4th 396, 413 [“the Legislature has . . . expressly

provided that the final order terminating parental rights and freeing the child for adoption

itself cannot be collaterally attacked in the trial court”]; In re Z.S. (2015) 235 Cal.App.4th

754, 770 [“Collateral attack of a termination order is expressly prohibited in [Welf. &

Inst. Code] § 366.26, subd. (i)(1)”]; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161

[Welf. & Inst. Code §366.26, subd. (i)(1) “forbids alteration or revocation of an order

terminating parental rights except by means of a direct appeal from the order”].)

Moreover, the provision has been applied strictly: for example, it has been used to find

modifications of termination orders void where the modifications sought to cure

purported ICWA violations. (In re K.M. (2015) 242 Cal.App.4th 450, 457-458; see also




                                              18
David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1018 [construing former

Welfare and Institutions Code section 366.26, subd. (h)].)

       The Legislature has restricted collateral attacks on termination orders because both

the state and the child have exceptionally strong interests in making sure the matter is

determined conclusively. As the United States Supreme Court has emphasized, “[t]he

State’s interest in finality is unusually strong in child-custody disputes,” and “[t]here is

little that can be as detrimental to a child’s sound development as uncertainty over

whether he is to remain in his current ‘home,’ under the care of his parents or foster

parents, especially when such uncertainty is prolonged.” (Lehman v. Lycoming County

Children’s Services Agency (1982) 458 U.S. 502, 513-514.) Our Supreme Court has

stressed the importance of finality in the dependency context as well, noting that in such

matters the state’s “interest in expeditiousness is strong indeed,” but that “[i]ts interest in

finality is stronger still.” (In re Sade C. (1996) 13 Cal.4th 952, 993; see also In re S.B.

(2004) 32 Cal.4th 1287, 1293 [“Because [dependency] proceedings involve the well-

being of children, considerations such as permanency and stability are of paramount

importance.”]; In re Jerred H. (2004) 121 Cal.App.4th 793, 799 [“our Supreme Court has

emphatically recognized” the importance of the “finality” of a termination order]; In re

Cody B. (2007) 153 Cal.App.4th 1004, 1011 [noting “public policy in preserving the

finality of termination judgments”].)

       A finding that a termination order entered without UCCJEA jurisdiction was

“‘“null and void” ab initio’” (Kabran, supra, 2 Cal.5th at p. 339) would core these public



                                              19
policy considerations. Years, perhaps a decade or more, after parental rights are

terminated and a child has been adopted, an aggrieved party could contend that the

adoption and termination orders must be reversed because, for instance, the child did not

actually live in this state in the six months before the dependency petition was filed. (See

§§ 3421, subd. (a)(1), 3402, subd. (g).) If the contention were meritorious, then the

child’s home and the identity of the legal parents would change at least once more, no

doubt significantly disrupting the child’s life. And even if the contention eventually

failed, the child would still have suffered “prolonged” “uncertainty” regarding his or her

home status. (See Lehman v. Lycoming County Children’s Services Agency, supra, 458

U.S. at pp. 513-514.) The risk attendant to such uncertainty is possibly why Welfare and

Institutions Code section 366.26, subdivision (i) limits collateral attacks to narrow

situations involving tribal customary adoptions. But in any event, we do not believe the

Legislature intended to subject the finality of termination orders to such a gaping

exception when it enacted the UCCJEA, or that the model UCCJEA was even intended to

regulate the fundamental jurisdiction of the courts of states that adopted it.

       If jurisdiction under the UCCJEA equated to fundamental jurisdiction, whether a

juvenile court’s error in deciding jurisdiction was harmless would be irrelevant. Any

judgment made by a court lacking fundamental jurisdiction must be reversed, regardless

of harm. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 199, fn. 10

[rejecting notion that lack of fundamental jurisdiction can be cured by harmless error

analysis].) The absence of any indication of harm here, however, underscores why the



                                             20
Legislature likely did not intend California’s UCCJEA to govern fundamental

jurisdiction.

       The record indicates that Louisiana rather than California likely had UCCJEA

jurisdiction over J.W., as the record indicates J.W. was born there in 2015 and moved in

December 2016 while A.W. remained in Louisiana. (See § 3421, subd. (a)(1); La. Stat.

Ann. § 13:1813(A)(1).) However, despite the fact that A.W. was given a full and fair

opportunity to participate in the proceedings below, there has been no attempt to

demonstrate that J.W. was ever the subject of any custody order in Louisiana, that

Louisiana has any open dependency cases involving her, or that the state has any other

specific reason to keep an eye on her well-being or whereabouts. At most, there are

passing references of Mother, before moving to California, stating an intent to surrender

her daughters to the Louisiana Department of Children and Family Services, but this does

not show that Louisiana was ever involved with protecting J.W.’s welfare. Moreover,

during the pendency of the proceedings below, A.W. moved from Louisiana to join

Mother in California and, like Mother and J.W., has stayed here since. Circumstances

such as these—multi-year California residence for all involved, a full and fair opportunity

to raise UCCJEA jurisdiction, and zero evidence of a conflicting proceeding—

demonstrate why the Legislature would not have intended to allow the possible

invalidation of Mother’s or J.W.’s termination orders, whether now or years into the

future, based on an argument that J.W. used to live in Louisiana. (See also Barquis v.

Merchants Collection Assn., supra, 7 Cal.3d at p. 120, fn. 25 [mandatory venue provision



                                            21
had no “constitutional infirmities” rendering judgments obtained in violation of provision

void where plaintiffs received “notice of the full amount sought in the collection agency’s

action”]; Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696, 718

[questioning “whether any purpose would be served by reversing the judgment entered in

this case and remanding the case so that the litigation can proceed in an orderly manner

with priority in the [earlier] Los Angeles County action,” because “[i]f there are no errors

in this record, and the evidence compels the result which has been obtained, such a

reversal would appear frivolous”], cited in County of San Diego, supra, 15 Cal.4th at pp.

88-89.)

       3. The UCCJEA and Subject Matter Jurisdiction

       In deciding this case, we do not write on a blank slate, and we acknowledge that

there are reasons why one might contend the UCCJEA should be read as governing

fundamental jurisdiction. For one, section 3421, subdivision (b) uses the word

“jurisdictional” in stating that the procedures described in section 3421, subdivision (a)

provide the “exclusive jurisdictional basis for making a child custody determination by a

court of this state.” For another, although neither the provisions of California’s UCCJEA

nor the model UCCJEA use the term, a comment to the model UCCJEA uses the phrase

“subject matter jurisdiction,” which is often equated with fundamental jurisdiction. (See

9 pt. 1A West’s U. Laws Ann. (1999) U. Child–Custody Jurisdiction and Enforcement

Act, com. foll. § 201, p. __ [“since jurisdiction to make a child custody determination is

subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court



                                             22
that would not otherwise have jurisdiction under this [a]ct is ineffective”]; Quigley v.

Garden Valley Fire Protection Dist., supra, 7 Cal.5th at p. 808 [using the terms

“fundamental jurisdiction” and “subject matter jurisdiction” interchangeably]; In re

Harris (1993) 5 Cal.4th 813, 836-837 [same].)

       Moreover, courts in this state and others have equated UCCJEA jurisdiction with

subject matter jurisdiction. (See, e.g., In re Aiden L., supra, 16 Cal.App.5th at p. 516; In

re R.L., supra, 4 Cal.App.5th at p. 136; Brewer v. Carter (2013) 218 Cal.App.4th 1312,

1316-1317 (Brewer); In re Gloria A., supra, 213 Cal.App.4th at p. 481; In re Jaheim B.,

supra, 169 Cal.App.4th at p. 1348; H.T. v. Cleburne County Dept. of Human Resources

(Ala. Civ. App. 2014) 163 So.3d 1054, 1061; Stauffer v. Temperle (Iowa Ct. App. 2010)

794 N.W.2d 317, 321; Officer v. Blankenship (Ky. Ct. App. 2018) 555 S.W.3d 449;

Schroeder v. Schroeder (Minn. Ct. App. 2003) 658 N.W.2d 909; Friedman v. Eighth

Judicial Dist. Court of State, ex rel. County of Clark (Nev. 2011) 127 Nev. 842; In re

Guardianship of K.B., supra, 2019 N.H. LEXIS 218; Gharachorloo v. Akhavan (N.Y.

App. Div. 2009) 67 A.D.3d 1013; Harshberger v. Harshberger (N.D. 2006) 724 N.W.2d

148; Rosen v. Celebrezze (Ohio 2008) 883 N.E.2d 420 (per curiam); Rosen v. Rosen

(W.Va. 2008) 222 W.Va. 402; Harignordoquy v. Barlow (Wyo. 2013) 313 P.3d 1265.)

Looked at loosely, these items suggest we should construe the UCCJEA as governing

fundamental jurisdiction, particularly if an analysis of the case law implicated section

3461, which provides that “[i]n applying and construing [the UCCJEA], consideration




                                             23
shall be given to the need to promote uniformity of the law with respect to its subject

matter among states that enact it.”

       However, there is no broad uniformity among the states on this issue. As the

Texas Supreme Court recently stated, “of the states that have considered the jurisdictional

issue, some refer to the UCCJEA as a subject-matter-jurisdiction statute, while others do

not. The issue is not settled.” (In the Interest of D.S. (Tex. May 8, 2020, No. 18-0908)

2020 Tex.LEXIS 396, at p.*20, footnotes listing cases omitted.)

       “Moreover”—and more importantly—“of the cases declaring [the] UCCJEA to be

a jurisdictional statute, . . . none devote analysis to why the statute is jurisdictional.” (In

the Interest of D.S., supra, 2020 Tex.LEXIS 396 at p. *20, fn. 83.) Our own analysis

reaches a similar conclusion: although some have cited the UCCJEA drafters’ single

comment noting subject matter jurisdiction (see, e.g., In re Guardianship of K.B., supra,

2019 N.H. LEXIS 218 at p.*3; Harshberger v. Harshberger, supra, 724 N.W. at p. 153),

most cases, including those in California, have not considered the issue in detail. In these

cases, moreover, courts have equated UCCJEA jurisdiction with subject matter

jurisdiction in situations where our distinction between mandatory rules and fundamental

jurisdiction would not have affected the result. (See, e.g., In re R.L., supra, 4

Cal.App.5th at p. 145 [affirming UCCJEA jurisdiction]; Brewer, supra, 218 Cal.App.4th

at pp. 1320-1321 [reversing for lack of evidence on inconvenient forum determination];

In re Gloria A., supra, 213 Cal.App.4th at pp. 480, 484 [reversing for lack of UCCJEA

jurisdiction where issue was raised below]; In re Jaheim B., supra, 169 Cal.App.4th at p.



                                               24
1350 [affirming UCCJEA jurisdiction]; H.T. v. Cleburne County Dept. of Human

Resources, supra, 163 So.3d at p. 1067 [same]; Jackson v. Sanomi (Ga. 2013) 292 Ga.

888, 889 [affirming lack of UCCJEA jurisdiction]; Stauffer v. Temperle, supra, 794

N.W.2d at pp. 319-323 [reversing for lack of UCCJEA jurisdiction where issue was

raised below]; Schroeder v. Schroeder (Minn. Ct. App. 2003) 658 N.W.2d at pp. 911-913

[same]; Friedman v. Eighth Judicial Dist. Court of Nev. (Nev. 2011) 127 Nev. at p. 845,

854 [granting writs in light of lower court’s erroneous assertion of UCCJEA jurisdiction];

Officer v. Blankenship, supra, 555 S.W.3d at pp. 452-453, 458-459 [reversing for lack of

UCCJEA jurisdiction where issue was raised below]; Gharachorloo v. Akhavan, supra,

67 A.D.3d at p. 1014 [affirming lack of UCCJEA jurisdiction]; Harshberger v.

Harshberger, supra, 724 N.W.2d at pp. 152, 157 [reversing for lack of UCCJEA

jurisdiction where issue was raised below]; Rosen v. Celebreeze, supra, 883 N.E.2d at pp.

242, 250 [same]; Rosen v. Rosen, supra, 222 W.Va. at pp. 405, 407 [affirming UCCJEA

jurisdiction]; Harignordoquy v. Barlow, supra, 313 P.3d at pp. 1268-1269 [same].)

       Only in a few cases we have come across could a determination that UCCJEA

jurisdiction is not fundamental jurisdiction have reasonably changed the result, but even

in some of these courts have presumed UCCJEA jurisdiction to be fundamental without

extended analysis. (See In re Guardianship of K.B., supra, 2019 N.H. LEXIS 218 at *3-

*4 [trial court denied petition to modify or terminate guardianship filed by biological

mother with no clear indication UCCJEA jurisdiction was raised; New Hampshire

Supreme Court ordered petition dismissed for lack of UCCJEA jurisdiction and did not



                                            25
reach merits]; In re Aiden L., supra, 16 Cal.App.5th at pp. 512, 516, 520-521, 523

[vacating termination orders where agency did not raise, and juvenile court did not

address, UCCJEA jurisdiction, but equated UCCJEA jurisdiction with fundamental

jurisdiction in passing].) Thus, upon closer inspection, the determinative issue is actually

not so much split among courts as it is simply undecided.

       Finally, as we have earlier discussed, “jurisdiction” can mean different things, and

we can find no indication in the legislative history that our Legislature intended

“jurisdiction” in section 3421 to mean fundamental jurisdiction when it enacted the

UCCJEA, or that it intended to create a UCCJEA exception to the near-total prohibition

of collateral attacks on termination orders in dependency cases. There is no indication,

furthermore, that the Legislature thought the model UCCJEA drafters’ singular reference

to “subject matter jurisdiction” was accurate, or that it was aware of it.

       Given the lack of an articulated reason in our cases why UCCJEA should be seen

as governing nonwaivable, nonforfeitable, fundamental jurisdiction—as opposed to a

mandatory rule that is waivable and forfeitable—as well as the heavy finality interests at

stake, we do not follow the language in those cases that seem to equate UCCJEA

jurisdiction with fundamental jurisdiction. Instead, we agree with those cases that hold

that the UCCJEA does not implicate fundamental jurisdiction. (See Kenda v. Pleskovic

(D.C. Ct. App. 2012) 39 A.3d 1249, 1253-1257 [holding that a party who “avail[ed]

herself” of an Indiana court’s jurisdiction is “judicially estopped” from challenging that

jurisdiction in the District of Columbia]; McCormick v. Robertson (Ill. 2015) 28 N.E.3d



                                             26
795, 803 [“As used in the statute, ‘jurisdiction’ must be understood as simply a

procedural limit on when the court may hear initial custody matters, not a precondition to

the exercise of the court’s inherent authority.”]; Williams v. Williams (Ind. 1990) 555

N.E.2d 142, 145 [“The jurisdictional limitations imposed by the [predecessor act to the

UCCJEA] are not equivalent to declarations of subject matter jurisdiction, but rather are

refinements of the ancillary capacity of a trial court to exercise authority over a particular

case. This exercise of authority is waivable.”]; Hightower v. Myers (Miss. 2010) 304

S.W.3d 727, 733 [noting that cases holding the UCCJEA’s predecessor act as governing

“‘subject matter jurisdiction’” “is no longer valid law” and that “[s]ubject matter

jurisdiction is governed by article V of the Missouri Constitution”]; see also In the

Interest of D.S. (Tex. May 8, 2020, No. 18-0908) 2020 Tex.LEXIS 396, at *6 (conc. opn.

of Lehrmann, J.) [agreeing with those cases “in which the courts properly treat a court’s

erroneous application of the UCCJEA’s requirements as just that: error, not lack of

subject matter jurisdiction” and noting that such a result is “consistent with the modern

trend . . . away from classifying statutes as jurisdictional in the true subject-matter sense
                                                            5
in the absence of clear legislative intent to that effect”].) We could see the result

differing in a state that did not bar collateral attacks on termination orders, or in a state

whose legislature clearly intended its UCCJEA to regulate the fundamental jurisdiction of


       5
          In In re Custody of A.C., supra, 165 Wash.2d at pages 573, 577, footnotes 3, 8,
the Washington Supreme Court noted that the UCCJEA “might have more accurately
used the term ‘exclusive venue’ instead of ‘subject matter jurisdiction’” and that
“Washington courts did, in fact, have subject matter jurisdiction over the parties and the
issues,” but it nevertheless construed UCCJEA jurisdiction as nonwaivable.

                                               27
its courts. But given the statutory scheme in our state, we do not construe California’s

UCCJEA in such a way.

        4. The UCCJEA and Waiver

       As a final point, we note that our cases have stated UCCJEA jurisdiction may not

be conferred by mere presence of the parties or by stipulation, consent, waiver or

estoppel. (See, e.g., In re Aiden L., supra, 16 Cal.App.5th at p. 516; In re R.L., supra, 4

Cal.App.5th at p. 136; Schneer v. Llaurado, supra, 242 Cal.App.4th at p. 1287; In re

A.M., supra, 224 Cal.App.4th at p. 598; Brewer, supra, 218 Cal.App.4th at p. 1317; In re

A.C., supra, 130 Cal.App.4th at p. 860.) That proposition is consistent with the

conclusion that UCCJEA jurisdiction is fundamental jurisdiction, as “‘“[f]undamental

jurisdiction cannot be conferred by waiver, estoppel, or consent”’” (Kabran, supra, 2

Cal.5th at p. 339).

       However, the case establishing the proposition in the UCCJEA context was In re

Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259 (Marriage of Ben-Yehoshua),

where, in interpreting the predecessor to the UCCJEA, the Court of Appeal stated that

“there is no provision in [the predecessor act] for jurisdiction to be established by reason

of the presence of the parties or by stipulation or consent.” (Id. at p. 264; see also In re

Marriage of Hopson (1980) 110 Cal.App.3d 884, 891-892 [making same statement].)

This statement from Marriage of Ben-Yehoshua is true so far as it goes—the UCCJEA,

like its predecessor, has no provision stating that physical presence, stipulation, or

consent alone can confer jurisdiction. (See § 3421, subd. (c) [“Physical presence of, or



                                              28
personal jurisdiction over, a party or a child is not necessary or sufficient to make a child

custody determination.”]; but cf. § 3427, subd. (b)(5) [court with UCCJEA jurisdiction

may decline jurisdiction and determine it is an inconvenient forum based on, among other

factors, whether there is an “agreement of the parties as to which state should assume

jurisdiction”].)

       Over time, however, this statement from Marriage of Ben-Yehoshua, supra, 91

Cal.App.3d 259 has evolved into a statement that UCCJEA jurisdiction can never arise

from stipulation, consent, waiver or estoppel. Such a broad rule is not supported by

Marriage of Ben-Yehoshua or the UCCJEA itself. (Compare Plas v. Superior Court

(1984) 155 Cal.App.3d 1008, 1013-1014 [citing Marriage of Ben-Yehoshua for the

statement that “[t]here is no provision in [the predecessor act] for jurisdiction to be

established by reason of the presence of the parties or by stipulation or consent”] with In

re A.C., supra, 130 Cal.App.4th at p. 860 [citing Plas and Ben-Yehoshua for the

statement that UCCJEA jurisdiction “cannot be conferred by stipulation, consent, waiver,

or estoppel”].) The UCCJEA merely contains no provision affirmatively providing for

jurisdiction by such means, and it does not go further. The absence of such a provision in

the UCCJEA does not mean that it establishes fundamental jurisdiction. Accordingly, the

UCCJEA does not require that a parent such as A.W. should be allowed to silently accede

to jurisdiction, or neglect to raise it, for years while parental fitness is adjudicated, only to

assert a lack of jurisdiction for the first time after a termination order. We therefore find




                                               29
that the Marriage of Ben-Yohushua rule does not show that UCCJEA jurisdiction is

fundamental jurisdiction.

       5. Conclusion

       The UCCJEA does not govern fundamental jurisdiction. As a result, A.W.’s

contention that the juvenile court lacked UCCJEA jurisdiction “cannot be raised for the

first time on appeal” (Kabran, supra, 2 Cal.5th at p. 347). The issue has been forfeited.

                                   IV. DISPOSITION

       The judgment is affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION


                                                               RAPHAEL
                                                                                            J.

We concur:

RAMIREZ
                       P. J.


FIELDS
                            J.




                                            30
