In re Paul C

Filed 5/2/06 In re Paul C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Reversed.

Jesus M. (Father) appeals a judgment terminating his parental rights to his son, Paul C., under Family Code^[1] section 7822. Father contends California does not have subject matter jurisdiction to modify a Mexican custody order under the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq.) (the UCCJEA). We conclude California does not have either home state jurisdiction or significant connection jurisdiction under the UCCJEA. Accordingly, we reverse the judgment of the juvenile court with directions to dismiss the section 7822 petition without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2005, Paul's mother (Mother) and stepfather (Stepfather) filed a petition in propria persona to declare Paul free from Father's custody and control under section 7822. Stepfather intended to adopt Paul after Father's parental rights were terminated. As part of the initial filing, Mother and Stepfather submitted a required UCCJEA declaration stating Paul lived in Mexico from December 1993 until December 2004 and resided in a confidential placement from December 2004 to the date of filing.

Paul was born in California in December 1989. After his birth, Mother and Father moved back and forth between California and Mexico before settling in Mexico when Paul was approximately one year old. Mother and Father separated in February or March 1991. In March 1992, they were granted a divorce by a Mexican court. Mother was awarded custody of Paul. Father made two child support payments of $50.00 each. After Mother gained custody, Father saw Paul only in passing.

Father, who was a legal resident of the United States, moved to Nevada in 1993. He periodically returned to Mexico to visit his parents who lived across the street from Paul's maternal grandparents. Father made no further attempt to support, contact, or visit Paul.

Mother married Stepfather who loved and supported Paul from the age of three. Paul understood the adoption process and was in full agreement with the plan of adoption. Paul had no relationship with Father. His Stepfather was the only father he had ever known.

In December 2004, Mother and Stepfather moved with Paul and their other children to California. In May 2005, they asked Father to voluntarily terminate his parental rights to Paul. After Father would not agree to the proposed adoption, they initiated court action to declare Paul free from Father's custody and control under section 7822. On July 25, 2005, Father was personally served a copy of the petition in Mexico. The proof of service notes he was served at "home."

A contested hearing was held on October 17, 2005. Mother testified the family moved to California in "the last days of December" 2004. When they moved, Paul was attending school in Mexico. Mother did not enroll Paul in school in California until the start of the 2005 school year. The family spent every weekend and holiday at the maternal grandmother's house in Mexico.

Father conceded he had not supported, contacted, or visited Paul for more than 12 years. He did not visit Paul after the divorce because he did not want to pay child support.

In a written order, the court found that Father had left the minor for a period of one year without provision for support and without communication with the intent to abandon him. The court determined that it was in Paul's best interests to be adopted by his Stepfather and terminated Father' parental rights. The court did not make any determination under the UCCJEA.

DISCUSSION

I

The UCCJEA

Father contends the juvenile court did not have subject matter jurisdiction to modify the initial Mexican custody order under the UCCJEA. The UCCJEA is the exclusive method for determining subject matter jurisdiction for custody proceedings in California. (§ 3421, subd. (b); In re Claudia S. (2005) 131 Cal.App.4th 236, 245; In re A.C. (2005) 130 Cal.App.4th 854, 860.) A "child custody proceeding" is defined as a "proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue." (§ 3402, subd. (d).) A proceeding to terminate parental custody to allow a stepparent adoption is a custody proceeding controlled by the UCCJEA. (§ 3402, subd. (d); Souza v. Superior Court (1987) 193 Cal.App.3d 1304, 1309-1310.)

In all disputes involving the UCCJEA, the threshold question is whether a state may properly assume jurisdiction. (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1013 (Plas).) Foreign countries are treated as states for the purpose of determining jurisdiction. (§ 3405, subd. (a); In re A.C., supra, 130 Cal.App.4th at p. 860; In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 956 (Newsome); Plas, at p. 1013.) "[S]ubject matter jurisdiction either exists or does not exist at the time the action is commenced." (Plas, supra, 155 Cal.App.3d at p. 1015, fn. 5, cited in In re Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1035.) The commencement of a proceeding is the date the action is filed. (In re Janette H. (1987) 196 Cal.App.3d 1421, 1429; In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1374.) Jurisdiction cannot be conferred by stipulation, consent, waiver, or estoppel. (Plas, at pp. 1013-1014; In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 263.) A reviewing court is not bound by the juvenile court's findings regarding subject matter jurisdiction; rather we " 'independently reweigh the jurisdictional facts.' " (In re A.C., supra, 130 Cal.App.4th at p. 860, quoting In re Adoption of Zachariah K., supra, 6 Cal.App.4th at p. 1034.)

Under section 3421, subdivision (a), a state has jurisdiction to make an initial custody order if any of the following are true:

"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

"(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. [¶] (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.

"(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428.

"(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)."

Here, Mexico was indisputably the home state of the child at the time of Mother's and Father's divorce proceedings in 1991-1992. A Mexican court issued the initial custody order in March 1992. The custody order is not in the appellate record. Mother testified she and Father shared joint legal and physical custody of Paul and Father was ordered to pay child support. Father testified he gave up custody of Paul and he was not obligated to pay child support.

II

Modification Jurisdiction Under the UCCJEA

A

General Principles

In child custody modification cases under section 3423, a court of this state cannot modify a custody order of another state unless the other state determines it no longer has exclusive, continuing jurisdiction under section 3422^[2] or declines to exercise jurisdiction on grounds the other state is the more convenient forum. (§ 3423, subd. (a); see Hoff, P., The ABC's of the UCCJEA: Interstate Child-Custody Practice Under the Act (1998) 32 Fam. L.Q. 267, 281-283, fns. omitted (Hoff).) Alternatively, if a court in either state finds the child, the child's parent and any person acting as a parent do not presently reside in the state issuing the order, that state no longer maintains exclusive, continuing jurisdiction. (§ 3423, subd. (b).)

Section 3423 reads:

"Except as otherwise provided in Section 3424, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and either of the following determinations is made:

"(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427.

"(b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state."

Here, the California court does not have jurisdiction to modify the Mexican custody order unless the California court would have jurisdiction to make an initial custody determination under section 3421, subdivision (a)(1) or (a)(2) and either (1) the Mexican court determines it no longer has exclusive continuing jurisdiction or, alternatively, the Mexican court determines a California court would be a more convenient forum under section 3427, or (2) either court determines Paul, Mother, Stepfather and Father do not presently reside in Mexico. (§ 3423, subds. (a) & (b).) In our analysis under this statute, we look first^[3] to determine whether Mexico retains exclusive, continuing jurisdiction or has declined to exercise its jurisdiction on the grounds that California was the more convenient forum. (§ 3423, subd. (a).)

B

Continuing Exclusive Jurisdiction

The California court did not exercise its discretion to contact the Mexican court under section 3410. Therefore, Mexico did not determine whether it had exclusive, continuing jurisdiction or choose to decline to exercise jurisdiction on the ground California was the more convenient forum. Therefore, we look to see whether the child, the child's parent, and any person acting as a parent do not presently reside in Mexico. (§ 3423, subd. (b).)

Although it is clear from the record that Paul, Mother, and Stepfather no longer resided in Mexico, information in the record concerning Father's residence is minimal and conflicting. The proof of service shows he was personally served at "home" in Mexico. However, in an addendum report dated October 17, 2005, the adoptions social worker stated the address in Mexico at which Father was served notice was the paternal grandmother's address. In August 2005, Father provided the social worker an address in San Diego. Mother testified Father had been a legal resident of the United States for 16 years. As that evidence is not contradicted, we conclude Father no longer resided in Mexico. Having determined that no party presently resides in Mexico, we conclude Mexico no longer has exclusive, continuing jurisdiction over its custody order as provided by section 3423, subdivision (b), and now turn to the question whether California has jurisdiction to modify the order.

C

Jurisdiction in the Modification State

If the state issuing the initial custody order no longer has exclusive, continuing jurisdiction or has declined to exercise its jurisdiction under section 3423, subdivision (a) or (b), then the other state, here, California, may modify the existing custody order only if it would have initial jurisdiction under section 3421, subdivision (a)(1) or (a)(2). Even when the child and his or her parent or parents have moved to a new state, jurisdiction to modify an existing order will not be automatically conferred. (See Grahm v. Superior Court (2005) 132 Cal.App.4th 1193, 1196 (Grahm).) In order to modify the Mexican custody order, California must either have, "home state" jurisdiction or "significant connection" jurisdiction. (§§ 3421, subd. (a)(2)(A); 3423.)

A California court has jurisdiction to make an initial custody determination under the UCCJEA if California is the home state of the child. (§ 3421.) The home state of the child 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." (§ 3402, subd. (g); see § 3421, subd. (a)(1).) The commencement of a proceeding is the date the action is filed. (In re Janette H., supra, 196 Cal.App.3d at p. 1429; In re Marriage of Torres, supra, 62 Cal.App.4th at p. 1374.)

Here, the petition for freedom from parental custody and control was filed June 10, 2005. In their UCCJEA declaration, Mother and Stepfather stated Paul moved to a confidential location in December 2004. At the section 7822 hearing, Mother testified the family moved to California in the "last days of December." Mother and Stepfather argue the record is not clear and do not concede Paul failed to meet the six-month requirement to establish home state jurisdiction.

When we review home state jurisdiction under the UCCJEA, we independently reweigh the jurisdictional facts. (In re A.C., supra, 130 Cal.App.4th at p. 860.) Mother testified Paul moved to California during the "last days of December." Given this evidence, we cannot conclude the date of the move was on or before December 10, 2004, six months before the filing date as required to establish home state jurisdiction under the UCCJEA. (§ 3402, subd. (g); see §§ 3421, subd. (a)(1); 3423.) Thus, we conclude California was not Paul's home state at the time the petition was filed and therefore the court did not have home state jurisdiction under section 3421, subdivision (a)(1) for purposes of modifying Mexico's initial custody order.^[4] (See In re A.C., supra at p. 862.)

D

Significant Connection Jurisdiction

A California court also may obtain jurisdiction when (A) the child and at least one parent have a significant connection with this state other than mere physical presence and (B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. (§ 3421, subd. (a)(2); In re A.C., supra, 130 Cal.App.4th at p. 862.)

The California Supreme Court has pointed out that "the policy of the act is not to establish concurrent jurisdiction, but to narrow jurisdiction." (In re Stephanie M. (1994) 7 Cal.4th 295, 313.) "The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state." (Plas, supra, 155 Cal.App.3d at p. 1016; see also Grahm, supra, 132 Cal.App.4th at p. 1199.) The court should not address the merits of the custody dispute within the context of the jurisdictional determination. "Rather, the court's inquiry is limited to the determination of whether it is in a better position than another court to decide the merits of the case and thus serve the best interest of the child."^[5] (Newsome, supra, 68 Cal.App.4th at p. 959.)

We independently review the record to determine whether Paul and one or both parents had a significant connection with California other than mere physical presence in the state. (In re A.C., supra, 130 Cal.App.4th at p. 860.) Like home state jurisdiction, significant connection jurisdiction either exists or does not exist at the time the petition is filed. (Id. at p. 861; Plas, supra, 155 Cal.App.3d at p. 1016; contra In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 894.)

An examination of the record shows Paul's connections with California at the time the petition was filed were minimal. Although Paul lived in California for almost one year when he was an infant, there is no evidence of further connection with this state until the family moved to California approximately 14 years later. After the move, Mother kept Paul in school in Mexico. She testified, "We moved to the States. [Paul] was in a school in Mexico, and I kept taking him to the school in Mexico. He start[ed] school this year [2005] in the States, but he has lived here since December of last year, 2004." Mother stated the family spent every weekend and every holiday at Paul's maternal grandmother's house in Mexico. The record does not show that Paul, as of June 10, 2005, had a significant connection with California other than his physical presence in the state on weekdays after school.^[6]

In contrast to Paul's minimum connection with California, evidence concerning his care, protection, training, and personal relationships was readily available in Mexico. Paul lived in Mexico for 14 of his 15 years. His schooling took place in Mexico. Paul's extended family lived in Mexico, including his paternal as well as maternal grandparents. Under these circumstances, the California court was not in a better position than its Mexican counterpart to decide the underlying custody dispute. (Newsome, supra, 68 Cal.App.4th at p. 959.) Thus, we conclude the juvenile court did not have subject matter jurisdiction under the UCCJEA to modify the custody order of the Mexican court under section 3423. Because subject matter jurisdiction did not exist at the time the petition was filed, we are compelled to reverse the judgment. This is required even though there was ample evidence to support the trial court's factual finding Father abandoned Paul within the meaning of section 7822.

DISPOSITION

The judgment is reversed. The matter is remanded to the juvenile court with directions to dismiss the petition without prejudice.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Family Code.

^[2] Section 3422 reads: "(a) Except as otherwise provided in Section 3424, a court of this state that has made a child custody determination consistent with Section 3421 or 3423 has exclusive, continuing jurisdiction over the determination until either of the following occurs: [¶] (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships. [¶] (2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state. [¶] (b) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 3421."

^[3] One commentator suggests as a matter of judicial economy a court undertake a determination of the requirements for modification jurisdiction under section 3423, subdivisions (a) and (b) before determining whether it would have jurisdiction to make an initial custody order under section 3421, subdivision (a)(1) or (a)(2). (Hoff, supra, 32 Fam. L.Q. 267 at pp. 281-283.)

^[4] Home state jurisdiction may also be found if the state was the child's home state at any time within the six months before the petition was filed and the child is absent from the state but a parent or a person acting as a parent continued to live in the state. (§ 3421, subd. (a)(1).) Under the facts of this case, this alternative test is not applicable and the issue was not raised by the parties.

^[5] The legal elements of the underlying custody dispute may differ depending on which state has jurisdiction, especially when foreign states are involved.

^[6] Father worked and lived in California and presumably had a significant connection with the state other than mere physical presence. However, due to his lack of contact with Paul, Father did not have information concerning Paul's care, protection, training, and personal relationships. (See generally, Kumar v. Superior Court (1982) 32 Cal.3d 689, 700; Grahm v. Superior Court, supra, 132 Cal.App.4th at pp. 1197-1200.)