In re E.N.
Filed 7/12/13 In re E.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.N. et al., Persons Coming Under the Juvenile Court
Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.N.,
Defendant and Appellant.
E058029
(Super.Ct.Nos. J239161, J239162)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Cheryl C. Kersey, Judge. Affirmed
in part and reversed in part with directions.
Johanna R. Shargel, under appointment by the
Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County
Counsel, and Dawn M. Messer, Deputy
County Counsel, for Plaintiff and Respondent.
R.N. (the mother) appeals from an order
terminating parental rights to two of her children — M.N., a girl who is now
four, and E.N., a boy who is now two.
The children were detained just two months after
the mother brought them with her from Alabama
to California. The mother therefore contends that, under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code,
§ 3400 et seq.), a California
court did not have jurisdiction to declare the children dependents or to
terminate parental rights.
Alternatively, the mother also asserts defective compliance with the
notice requirements of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and
state law.
We will hold that the juvenile court had
temporary emergency jurisdiction, which, as long as there was no conflicting
custody proceeding in any other state, gave it the authority to make final
custody determinations. However, we will
further hold that the ICWA notice was defective. Hence, we will order a conditional limited
remand.
I
FACTUAL AND PROCEDURAL
BACKGROUND
As of early 2011, the mother lived in Alabama. She had five children by three different
fathers:
1. K.C., a
son, born in 1999 (the oldest child);
2. J.B., a
son, born in 2001, and S.B., a son, born in 2002 (collectively, the middle
children);
3. M.N., a
daughter, born in 2009, and E.N., a son, born in 2010 (collectively, the
youngest children or the children).
Only the youngest children were in the mother’s
custody. In 2009, a relative who lived
in San Bernardino County
had been made the legal guardian of the oldest child. Moreover, in 2009, the father of the middle
children, who lived in Alabama,
had been awarded legal and physical custody of them.
Sometime between April 2 and April 4, 2011, the mother left Alabama
and came to California. She took with her not only the youngest
children, but also the middle children, who had been visiting her. She enrolled the middle children in school in
Adelanto. She also applied for services
in Adelanto. As a result, in May 2011,
she was located and arrested for kidnapping the middle children.
The mother admitted having “a mental health
diagnosis . . . .â€
She said she had a “place†in Alabama
and had come to California to
“get†the oldest child.
The children reported that the mother did not
feed them regularly or sufficiently.
There was not much food in the home.
There also were not enough clothes and diapers for the youngest children. All four children had runny noses; the
youngest children had eczema. The mother
admitted that she had not taken any of the four children to a doctor “in a
while.â€
The middle children were returned to their
father, who took them back to Alabama. The youngest children were detained, and San
Bernardino County Children and Family Services (the Department) filed
The mother identified the father of the youngest
children as one M.H. (the father), who lived in Alabama. The Department located him in Mobile. He was personally served with notice of the
dependency, but he never appeared. The
youngest children were placed in a foster home.
The mother was extradited to Alabama. There is no evidence that she was ever
prosecuted for kidnapping; however, she was charged with shoplifting. She was granted deferred prosecution; hence,
she was released, but she could not leave the state.
In July 2011, at the jurisdictional/dispositional
hearing, the juvenile court found jurisdiction over the youngest children based
on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and,
solely as to the father, failure to support (id., subd. (g)).
The mother’s Alabama
psychiatrist reported
that the mother was schizophrenic; she had a history of paranoia, delusions,
and hallucinations. She could not take
psychotropic medication because she had become pregnant again.
The mother’s “living arrangements†in Alabama
were not “stable†— i.e., she moved repeatedly.
In January 2012, when the mother was nine months
pregnant, she assaulted her mother (the maternal grandmother). She was charged with domestic violence. She also violated her shoplifting probation.
Around March 2012, the mother started missing
therapy appointments.
In August 2012, at the 12-month review hearing,
the juvenile court terminated reunification services and set a hearing pursuant
to Welfare and Institutions Code section 366.26 (section 366.26).
Later in August 2012, the youngest children were
placed with the mother’s second cousin, who was interested in adopting them.
In December 2012, at the section 366.26 hearing,
the juvenile court found that the youngest children were adoptable; it found no
applicable exception to termination.
Accordingly, it terminated parental rights.
II
UCCJEA JURISDICTION
The mother contends that Alabama
— not California — had exclusive
subject matter jurisdiction.
“‘The UCCJEA is the exclusive method in California
to determine the proper forum in child custody proceedings involving other
jurisdictions. [Citation.] A dependency action is a “‘child custody
proceeding’†subject to the UCCJEA.
[Citations.] The purposes of the
UCCJEA in the context of dependency proceedings include avoiding jurisdictional
competition and conflict, promoting interstate cooperation, litigating custody
where child and family have closest connections, avoiding relitigation of
another state’s custody decisions, and promoting exchange of information and
other mutual assistance between courts of other states.’ [Citation.]â€
(In re Nelson B. (2013)
215 Cal.App.4th 1121, 1128.)
“We . . . independently reweigh the
jurisdictional facts. [Citation.]†(In re
Nelson B., supra, 215
Cal.App.4th at p. 1129.)
Family Code section 3421, subdivision (a), part
of the UCCJEA, provides four bases on which a California
court can exercise nonemergency jurisdiction:
1. “Home
state†jurisdiction: “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.†(Fam. Code, § 3421, subd. (a)(1).)
2.
“Significant connection†jurisdiction:
“A court of another state does not have jurisdiction under [Family Code
section 3421, subdivision (a)(1)], or a court of the home state of the child
has declined to exercise jurisdiction on the grounds that this state is the
more appropriate forum . . . , 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.†(Fam. Code, § 3421,
subd. (a)(2).)
3. “More
appropriate forum†jurisdiction: “All
courts having jurisdiction under [Family Code section 3421, subdivision (a)(1)
or (a)(2)] have declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum . . . .†(Fam. Code, § 3421, subd. (a)(3).)
4.
“Default†jurisdiction: “No court
of any other state would have jurisdiction under the criteria specified in
[Family Code section 3421, subdivision (a)(1), (a)(2), or (a)(3)].†(Fam. Code, § 3421, subd. (a)(4).)
“Home state†is defined as “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. In the case of a child less
than six months of age, the term means the state in which the child lived from
birth with any of the persons mentioned.
A period of temporary absence of any of the mentioned persons is part of
the period.†(Fam. Code, § 3402,
subd. (g).)
As the Department concedes, California was not
the children’s home state, because they had not lived here for at least six
months before the commencement of the proceeding. Thus, the juvenile court did not have
jurisdiction under Family Code section 3421, subdivision (a)(1).
The Department argues, however, that Alabama was
not the children’s home state, either, and hence the juvenile court had “significant
connection†jurisdiction under Family Code section 3421, subdivision
(a)(2). It argues that the mother had
been living in California, along with the children, for nearly two months
before the commencement of the dependency proceeding; thus, the children were
not living in Alabama with a parent for at least six consecutive months
dependency.
We may assume, without deciding, that Alabama was
not the children’s home state at the commencement of the dependency. However, Family Code section 3421,
subdivision (a)(1) has two alternative prongs.
Under the second prong, a state has jurisdiction if it (1) was the home
state of the children within six months before the commencement of the
proceeding, (2) the children were absent from the state, and (3) a parent
continues to live in the state. Here,
Alabama met all three of these criteria.
It was the children’s home state until at least two months before the
dependency. When the dependency began,
the children were absent from Alabama.
And one of their parents — the father, M.H. — continued to live in
Alabama.
Code section 3421, subdivision (a)(1).
This necessarily means that California did not have nonemergency jurisdiction under subdivision (a)(2), (3),
or (4).
However, California did have emergency jurisdiction under Family Code section 3424, subdivision
(a), which provides: “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, or a sibling or parent of the child, is
subjected to, or threatened with, mistreatment or abuse.†When the children came to the attention of
the Department, the mother had just been arrested; the children were underfed,
medically neglected, and ill-clad. It
was not just appropriate but absolutely necessary to detain them for their
protection. The mother does not argue
otherwise.
Instead, the mother argues that temporary
emergency jurisdiction is meant to be — well, temporary. She asserts:
“[A]ny ‘emergency’ ended when [the] mother was released and required to
return to Alabama, and the children should have been returned to their ‘home
state’ at that point too.†(Fn.
omitted.) She also argues that temporary
emergency jurisdiction did not give the juvenile court the authority to make
jurisdictional findings or to terminate parental rights.
“An ‘emergency’ exists when there is an immediate
risk of danger to the child if he or she is returned to a parent. [Citation.]
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.
[Citations.]†(
Cal.App.4th 1343, 1349-1350.)
Here, the mother’s arrest for kidnapping was the
precipitating cause of the dependency, but it was scarcely the only cause. Even before her arrest, she neglected the children;
she failed to feed them regularly, failed to clothe them adequately, and failed
to provide for their medical needs. It
would appear that the fundamental, underlying cause of the dependency was her
mental illness. Virtually throughout the
dependency, she was not receiving any therapy or taking any psychotropic
medication. Hence, the emergency
continued. (See In re Jaheim B., supra,
169 Cal.App.4th at pp. 1350-1351 [emergency jurisdiction continued, even
after detention, where mother remained homeless, did not have stable
employment, and did not participate in reunification services].)
The UCCJEA itself addresses the duration of any
child custody determinations made in the exercise of temporary emergency
jurisdiction. Basically, this depends on
whether there are any preexisting child custody proceedings or orders:
1. Family
Code section 3424, subdivision (b) provides:
“If there is no previous child
custody determination that is entitled to be enforced under this part and a
child custody proceeding has not been
commenced in a court of a state having jurisdiction under Sections 3421 to
3423, inclusive, a child custody determination made under this section remains
in effect until an order is obtained from a court of a state having
jurisdiction under Sections 3421 to 3423, inclusive. If a child custody proceeding has
Sections 3421 to 3423, inclusive, a child custody determination made under this
section becomes a final determination, if it so provides and this state becomes
the home state of the child.†(Italics
added.)
2. Family
Code section 3424, subdivision (c) provides:
“If there is a previous child
custody determination that is entitled to be enforced under this part, or a
child custody proceeding has been
commenced in a court of a state having jurisdiction under Sections 3421 to
3423, inclusive, any order issued by a court of this state under this section
must specify in the order a period that the court considers adequate to allow
the person seeking an order to obtain an order from the state having
jurisdiction under Sections 3421 to 3423, inclusive. The order issued in this state remains in
effect until an order is obtained from the other state within the period specified
or the period expires.†(Italics added.)
Here, there was no previous child custody
determination or proceeding, and no other child custody proceeding was
commenced while this proceeding was pending.
Accordingly, under Family Code section 3424, subdivision (b), the
juvenile court’s custody determinations not only remained in effect, but became
final, because California did eventually become the children’s home state.
There are two cases on point.
The first is In
re Angel L. (2008) 159 Cal.App.4th 1127. There, the child lived with both parents in
Nevada. (Id. at pp. 1132, 1134.)
The father brought her to California to visit her grandmother. Shortly thereafter, the child was detained
because the father had left her in the care of the grandmother, who was senile;
also, the grandmother’s home was unsanitary, and the child had a severe diaper
rash. (Id. at pp. 1131-1132.)
The juvenile court sustained a dependency petition alleging failure to
protect. (Id. at p. 1133.)
Eventually, the juvenile court terminated parental rights. (Id.
at pp. 1135-1136.)
On appeal, the parents argued that the juvenile
court lacked jurisdiction under the UCCJEA.
(In re Angel L.,
p. 1136.) The appellate court held
that, at the outset of the case, the juvenile court properly assumed temporary
emergency jurisdiction. (
It added:
“Even though emergency jurisdiction ordinarily is intended to be short
term and limited, the juvenile court may continue to exercise its authority as
long as the risk of harm creating the emergency is ongoing. [Citation.]
In the present proceeding, neither father nor mother contends the
conditions leading to the child[] being made dependents of the court would not
recur should California cede jurisdiction over the child[] or that it is
possible to return . . . the child[] to one or both
parents. They argue only that the child[
is] subject to the jurisdiction of
. . . . Absent an action
in Nevada for the protection of the child[] by the Nevada child protection
agency, the California juvenile court properly had, and continues to have,
jurisdiction to act. Once the court
detained the child[] and declared [her a] dependent[] of the court, its
temporary emergency jurisdiction ripened into permanent jurisdiction and
California became [her] home state.†(
pp. 1139-1140.)
The court explained: “‘[H]ome state’ [is defined] as the state in
which the child immediately preceding the time involved lived with
. . . a parent, or person acting as a parent, for at least six
consecutive months. [Citation.] From [the filing of the dependency], the
child[] ha[s] been in the care, custody and control of respondent. Even if the record does not affirmatively
show [she] had been in California for six months prior to the court declaring
the child[] to be [a] dependent[] . . . , at least at the time
the court terminated reunification services and ordered permanent planning
services, the child[] had been in California for six months in the care of the
respondent and the juvenile court, who acted as a parent.†(In re
Angel L., supra, 159
Cal.App.4th at p. 1140.)
The second case is In re Jaheim B., supra,
169 Cal.App.4th 1343. There, the mother
and child moved from Florida to California.
About five months later, the child was detained after the mother
abandoned him. (Id. at p. 1346.) The
father was in prison in Alabama. (
jurisdiction based on failure to protect.
(Ibid.)
The father appealed, arguing that the juvenile
court lacked jurisdiction under the UCCJEA.
(In re Jaheim B.,
p. 1348.) The appellate court held
that, at the outset of the case, “the juvenile court did have emergency
jurisdiction . . . because Jaheim was present in California when the
neglect occurred, and the court’s action was necessary to protect Jaheim from
immediate harm. [Citation.]†(Id.
at p. 1350.) Thereafter, “there was
no jurisdictional conflict with another state’s court and therefore, the UCCJEA
did not restrict the court’s power to proceed.
[Citations.] . . . Once the court detained Jaheim and declared
him a dependent and removed him from parental custody, ‘its temporary emergency
jurisdiction ripened into permanent jurisdiction and California became [his]
home state.’ [Citation.]†(Id.
at p. 1351.)
Here, just as in Angel L. and Jaheim B.,
there is no prior custody proceeding and there are no prior custody
orders. When the dependency was filed,
the juvenile court properly assumed temporary emergency jurisdiction. As the emergency continued, so did the juvenile
court’s jurisdiction. Eventually,
because the children were living in California, in the custody of the juvenile
court and the Department, for more than six months, California became their
home state. At that point, under Family
Code section 3424, subdivision (b), the juvenile court became authorized to
make final custody determinations, and any custody determinations that it had
previously made became final.
The mother quotes In re C.T. (2002) 100 Cal.App.4th 101, which stated that “emergency
jurisdiction does not confer . . . the authority to make a permanent
custody disposition. [Citation.]†(Id.
at p. 108.) It also stated, “a
finding of emergency under the [UCCJEA] does not contemplate or authorize a
finding that the minor is a person described in [Welfare and Institutions Code]
section 300.†(Id. at p. 109.)
In In re C.T.,
however, a child custody proceeding was already pending in another state. (In re
C.T., supra, 100 Cal.App.4th at
p. 104.) Thus, the court stated,
“we examine the procedure set forth in the [UCCJEA] applicable to the assertion
of [dependency] jurisdiction over a child
who is the subject of an existing sister state custody order
. . . .†(
3424, subdivision (c), an “order assuming emergency jurisdiction
. . . has time limitations. It
must specify ‘a period that the court considers adequate to allow the person
seeking an order to obtain an order from the state having jurisdiction.’ [Citation.]
It ‘remains in effect until an order is obtained from the other state
within the period specified or the period expires.’ [Citation.]â€
(Id. at p. 108.) Thus, based on Family Code section 3424,
subdivision (c), the court “conclude[d] the juvenile court was not authorized
under the [UCCJEA] to make the section 300 true finding . . . .†(Id.
at p. 109.)
In re C.T.
is not controlling because here, again, there was no prior child custody
proceeding in Alabama. Accordingly,
Family Code section 3424, subdivision (c) does not apply. Rather, the applicable provision is Family
Code section 3424, subdivision (b), which expressly allows a court with
temporary emergency jurisdiction to make “a final
determination . . . .â€
We therefore conclude that the juvenile court had
subject matter jurisdiction throughout the dependency.
III
ICWA NOTICE
The mother contends that the juvenile court
failed to comply with the notice provisions of ICWA and related
A. Additional Factual and
Procedural Background.
When first interviewed, the mother said she
thought she had Indian ancestry through her maternal grandmother; she could not
name the tribe.
The mother completed a “Parental Notification of
Indian Status†(Form ICWA‑020) stating, “I may have Indian ancestry†but
giving no further details.
At the detention hearing, she similarly stated
that she had Indian heritage on her mother’s side. She provided her mother’s maiden name,
address, and date of birth.
On June 27, 2011, the Department provided notice
of the proceedings by sending a “Notice of Child Custody Proceeding for Indian
Child†(Form ICWA‑030) to the mother and to the Bureau of Indian Affairs
(BIA) by certified mail. The notice
included the mother’s name, address, and date and place of birth; her mother’s
maiden and married names, address, and date and place of birth; her father’s
name and date and place of birth; her maternal grandmother’s married name and
place of death; and her maternal grandfather’s name and place of death. It also included the father’s name and date
of birth. All other information was
listed as either “unknown†or “no information available.†(Capitalization omitted.)
On or about July 12, 2011, the BIA
responded: “The family provided
insufficient information to substantiate any federally recognized tribe.â€
The Department filed an “ICWA Declaration of Due
Diligence.†Under “search efforts,†it
listed only two “search sources,†the mother and the BIA. (Capitalization omitted.)
On September 12, 2011, the juvenile court found
that ICWA did not apply.
B. Analysis.
“Congress enacted ICWA to further the federal
policy ‘“that, where possible, an Indian child should remain in the Indian
community . . . .â€â€™
[Citation.]†(
48.)
Under ICWA, whenever “the court knows or has
reason to know that an Indian child is involved,†notice of the proceedings
must be given to “the parent . . . and the Indian child’s tribe
. . . .†(25 U.S.C.
§ 1912(a).) “If the identity
. . . of the . . . tribe cannot be determined,†the notice
must be given to the BIA. (
Under implementing federal regulations, the
notice must include the names (including maiden, married, and former names),
current and former addresses, birthdates, and places of birth and death of the
child’s parents grandparents and great grandparents, “if known.†(25 C.F.R. § 23.11(a), (d).)
California has extended the obligation to give
notice to those situations in which “the court, a social worker, or probation
officer knows or has reason to know
that an Indian child is involved . . . .†(Welf. & Inst. Code, § 224.2, subd.
(a), italics added.) California law also
provides that “[t]he court [and] county welfare department . . . have
an affirmative and continuing duty to inquire whether a child . . .
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.†(Welf. & Inst. Code, § 224.3, subd.
(a).) “If the court [or] social worker
. . . knows or has reason to know that an Indian child is involved,
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 contacting . . . any other person that
reasonably can be expected to have information regarding the child’s membership
status or eligibility.†(Welf. &
Inst. Code, § 224.3, subd. (c).)
“If proper and adequate notice has been provided
. . . , and neither a tribe nor the Bureau of Indian Affairs has
provided a determinative response within 60 days after receiving that notice,
the court may determine that [ICWA] does not apply to the proceedings
. . . .†(Welf. &
Inst. Code, § 224.3, subd. (e)(3).)
“ICWA notice issues cannot be forfeited for
appeal by a parent’s failure to raise them in the juvenile court, because it is
the tribes’ interest, not the parents’, that is at stake in dependency
proceedings that implicate ICWA.
[Citations.]†(
1400.)
“The juvenile court must determine whether proper
notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]
We review the trial court’s findings for substantial evidence. [Citation.]â€
(In re E.W. (2009) 170 Cal.App.4th
396, 403-404.)
To the extent that the notice did not include
information about (1) the father and his family, (2) the mother’s father and
his family, or (3) the mother’s paternal grandfather and his family, any error
was harmless. The mother had already
indicated that the children’s Indian ancestry, if any, was through her maternal
grandmother. Thus, the omitted
information would not have helped to determine whether the children were Indian
children. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576-577 [Fourth
Dist., Div. Two] [omission of information regarding non-Indian side of family
was harmless].)
However, the notice also failed to include
information about the mother’s maternal grandmother — her maiden name,
address(es), birth date, or place of birth.
Although it stated that this information was not available, the
“Declaration of Due Diligence†revealed that the only inquiry the social worker
had actually made was to the mother; even though the mother had provided her
mother’s address, the social worker had not contacted the mother’s mother. Thus, there is insufficient evidence that the
omitted information was, in fact, unavailable.
Indeed, it seems reasonably likely that the mother’s mother would have
been able to provide at least some of this information about her own
mother. For the same reasons, the record
demonstrates that the social worker failed to make the requisite further
inquiry. And finally, for all the same
reasons, there is insufficient evidence to support the finding that ICWA did
not apply.
“Because the juvenile court failed to ensure
compliance with the ICWA requirements, the court’s order terminating parental
rights must be conditionally reversed.
This ‘does not mean the trial court must go back to square one,’ but
that the court ensures that the ICWA requirements are met. [Citations.]
‘If the only error requiring reversal of the judgment terminating
parental rights is defective ICWA notice and it is ultimately determined on
remand that the child is not an Indian child, the matter ordinarily should end
at that point, allowing the child to achieve stability and permanency in the
least protracted fashion the law permits.’
[Citation.]†(
Cal.App.4th 1160, 1168, fn. omitted.)
IV
DISPOSITION
The orders appealed from are reversed, subject to
the following conditions. On remand, the
juvenile court shall order the Department to give notice in compliance with
ICWA and related federal and state law.
This shall include, without limitation, contacting the mother’s mother,
if still feasible, and asking her to provide the information required to be in
the notice. Once the juvenile court
finds that there has been substantial compliance with the notice requirements of
ICWA, it shall determine whether the children are Indian children. If it finds that they are not Indian
children, it shall reinstate the original order terminating parental
rights. If it finds that they are Indian
children, it shall set a new section 366.26 hearing and it shall conduct all further
proceedings in compliance with ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting
P. J.
KING
J.
name="_ftn1" title="">[1] Alabama
has adopted the UCCJEA and thus has a substantially identical statute. (Ala. Code, § 30-3B-201.)
name="_ftn2" title="">[2] The Department does not argue that
the father was not a “parent†within the meaning of Family Code section
3421. We deem any such contention
forfeited.
