Filed 2/13/14 Certified for publication 3/10/14 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



In re A.M. et al., Persons Coming Under
the Juvenile Court Law.
                                                             D064420
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                             (Super. Ct. No. J518677A-B)
         Plaintiff and Respondent,

         v.

CRYSTAL C. et al.,

         Defendants and Appellants.



         APPEALS from orders of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed with directions.

         Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

Appellant Crystal C.

         Sahyeh S. Riopelle, under appointment by the Court of Appeal, for Defendant and

Appellant Juan M.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.



       Crystal C. and Martin M. appeal juvenile court jurisdictional and dispositional

orders concerning their children, A.M. and Damian M. Crystal and Martin contend the

court erred by exercising jurisdiction over the children without contacting their home

state of Mexico as required by the Uniform Child Custody Jurisdiction and Enforcement

Act (UCCJEA) (Fam. Code, § 3400 et seq.),1 and the court did not have emergency

jurisdiction over the children under the UCCJEA. We affirm the orders because the

court's assumption of emergency jurisdiction was proper, but we remand the proceedings

to the juvenile court to allow it to contact and provide notice to Mexican authorities. If a

Mexican court does not take action after notice and contact, the jurisdictional and

dispositional orders will remain in effect. If a Mexican court commences proceedings,

the juvenile court is directed to proceed in conformity with the provisions of the

UCCJEA and void its jurisdictional and dispositional orders.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On April 29, 2013, Crystal was arrested as she attempted to smuggle three pounds

of heroin from Mexico into the United States. Five-year-old A.M. and three-year old

Damian were in the car with her when she attempted to drive across the international

border. Crystal had been having financial problems and agreed with Martin to smuggle


1      Statutory references are to the Family Code unless otherwise specified.

                                             2
the drugs. She took the children with her in hopes of avoiding detection. Crystal claimed

she knew there were drugs in the car, but not what kind of drugs or how much she was

carrying.

       Crystal said she and the children had lived both in Tijuana and in San Diego, and

they had been living in Tijuana with Crystal's new boyfriend for at least six months.

Martin also lived in Tijuana. Crystal and Martin had an informal shared custody

arrangement and exchanged the children each week.

       On May 1, the San Diego County Health and Human Services Agency (the

Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b) on

behalf of the children, alleging they were at substantial risk because they had been in the

car with Crystal while she and Martin were attempting to smuggle a controlled substance

into the United States. At the detention hearing, the court assumed emergency

jurisdiction under the UCCJEA because the children's home state is Mexico. It detained

them in out-of-home care and set a further UCCJEA hearing to contact or provide notice

to a Mexican court to determine whether Mexico would exercise jurisdiction and

commence proceedings. The children were detained with their maternal great-aunt in

San Diego.

       Crystal admitted to the charges against her and was awaiting a sentencing hearing

where she faced a prison sentence of three and one-half to five years. She visited the

children twice each week. Martin called them daily. He admitted using drugs in the past

and said he was willing to participate in services, but he did not wish to cross the

international border because he was afraid he would be arrested.

                                              3
       At the hearing on June 14, the court received the Agency reports into evidence and

heard argument from counsel regarding emergency jurisdiction. The court found it had

emergency jurisdiction because of the dangerous situation the children faced and because

the parents had used them as pawns in the hope they could help them pass the border

checkpoint. The court noted if it did not assume jurisdiction, the children would be

returned to Martin in Mexico where they would be at risk. After further argument, the

court found the allegations of the petitions to be true, declared the children dependents of

the court, removed them from parental care, placed them with a relative and ordered

reunification services.

                                       DISCUSSION

                                              I

       Crystal contends the court erred by exercising jurisdiction without contacting a

court in the children's home state of Mexico to determine whether Mexico wished to

assert jurisdiction. Martin joins her arguments and adopts them as his own.

       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 custody proceeding' " subject to the UCCJEA.

(§ 3402, subd. (d); In re Angel L. (2008) 159 Cal.App.4th 1127, 1136.)



                                              4
       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 jurisdiction under the foregoing tests

(§ 3421, subd. (a)(4)).

       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.)

       The juvenile court erred by not contacting and providing notice to a court in

Mexico to determine whether Mexico wished to assert jurisdiction and commence

proceedings to protect the children. Crystal, Martin and the children had lived in Tijuana

for at least six months before the Agency filed the petitions on the children's behalf.




                                              5
       The judge who presided over the detention hearing indicated that because the

family lived in Mexico the court was assuming emergency jurisdiction and would follow

up with a Mexican court to determine whether Mexico would assume jurisdiction.

However, the case was then transferred to another court and there is nothing in the record

to indicate that this court ever contacted a Mexican court. The failure to contact Mexican

authorities was error, but because the court had properly taken emergency jurisdiction

over the children (see section II, post), the error was harmless. A court's custody

determination remains in effect under the court's emergency jurisdiction until a child

custody proceeding has began in the state with subject matter jurisdiction (§ 3424. subd.

(b)) or until the state of emergency no longer exists (In re Nada R. (2001) 89 Cal.App.4th

1166, 1175). If Mexico does not assume jurisdiction, the jurisdictional and dispositional

orders will become the final determination and California will become the children's

home state. (§ 3424, subd. (b).)

                                              II

       Crystal asserts the court erred by assuming temporary emergency jurisdiction over

the children because they would not be at immediate risk if returned to her care. Martin

joins her arguments.

       Section 3424 provides an exception to the exclusive jurisdictional bases for

making a child custody determination in California. 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,

                                               6
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.

supra, 89 Cal.App.4th at p. 1174.) 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.)

       The court properly assumed emergency jurisdiction. Crystal's and Martin's

attempt to use the children in their scheme to smuggle heroin across the international

border presented a substantial risk of danger to the children. The Homeland Security

Investigations Agent told the social worker that Crystal had placed the children "in a

potentially dangerous situation that could have led to bodily injury and/or death [by] risks

often associated with drug distribution." Martin admitted he and Crystal had conspired to

involve the children in their attempt to smuggle drugs. He also admitted using cocaine

and marijuana and that he had previously been stopped at the border for smuggling illegal

aliens. He remained in Mexico to avoid potential prosecution in the United States. On

this record, substantial evidence supports the court's finding that returning the children to

either parent without the parent's participation in services would place the children at a

substantial risk of harm and that the risk of harm was continuing. The court properly

assumed emergency jurisdiction and continued to exercise that jurisdiction because of the

ongoing risk to the children.




                                              7
                                        DISPOSITION

          The jurisdictional and dispositional orders are affirmed. The case is remanded for

the limited purpose of contacting and providing notice to Mexican authorities to

determine whether Mexico wishes to assume jurisdiction and to commence proceedings

to protect the children. If a Mexican court does not take action after contact and notice,

the jurisdictional and dispositional orders shall remain in effect. If a Mexican court

assumes jurisdiction and commences proceedings, the juvenile court is ordered to

proceed in conformity with the UCCJEA and to void its jurisdictional and dispositional

orders.



                                                        HUFFMAN, Acting P. J.

WE CONCUR:


NARES, J.


McDONALD, J.




                                               8
Filed 3/10/14
                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



In re A.M. et al., Persons Coming Under
the Juvenile Court Law.
                                                 D064420
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                 (Super. Ct. No. J518677A-B)
        Plaintiff and Respondent,
                                               ORDER CERTIFYING OPINION FOR
        v.                                     PUBLICATION

CRYSTAL C. et al.,

        Defendants and Appellants.


THE COURT:

        The opinion filed February 13, 2014, is ordered certified for publication.



                                                         /s/ Huffman
                                                                  HUFFMAN, Acting P. J.

Copies to: All parties
