In re Brianna Z.
Filed 5/25/06 In re Brianna Z. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
In re BRIANNA Z. et al., Person Coming Under the Juvenile Court Law. | |
LAURA B., Plaintiff and Respondent, v. CHRISTOPHER Z., Defendant and Appellant. | D047540 (Super. Ct. No. A52250) |
APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Reversed and remanded.
Christopher Z. appeals the judgment terminating his parental rights to his daughter, Brianna, on the basis of abandonment under Family Code section 7822. (All undesignated statutory references are to the Family Code.) He asserts (1) a Colorado order regarding child support arrearages was entitled to full faith and credit and prevented the trial court from finding he intended to abandon Brianna and (2) there was insufficient evidence to support a finding of abandonment.
We do not reach the merits of Christopher's contentions as we conclude the trial court erred in failing to communicate with the Colorado court as required under the Uniform Child Custody Jurisdiction and Enforcement Act (§§ 3400 et seq., the Act). (§ 3426, subd. (b).) The judgment terminating Christopher's parental rights is reversed and the matter is remanded for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Christopher and Laura B. were married in Colorado in 1992 and Brianna was born there in 1994. In 1996, the couple divorced in Colorado, with the Colorado court giving Laura legal and primary physical custody of Brianna. (In Re Marriage of Christopher Z. and Laura Z. (Dist. Ct. Larimer County, Colo., No. 95DR1125-5.) Although Christopher sought joint custody, the Colorado court found this arrangement was not a viable option because Christopher lived in Colorado, Laura lived in California, they had " miserable communications" and " there would be constant fighting between them if [it] were to order joint custody." The court noted that Christopher did not have contact with Brianna for seven to eight months, but refused to assign blame for the situation and ordered Laura to return Brianna to Colorado for parenting time with Christopher under a set schedule. The court also ordered Christopher to pay $253 per month in child support to San Diego County because Laura received " AFDC."
In 1998, the San Diego County Health and Human services Agency (the Agency) took Brianna and her five siblings into protective custody and placed Brianna with Christopher. The Agency later placed Brianna with her maternal grandmother and eventually returned her to Laura in 1999 and closed the case in July 2000. In October 2004, the Colorado court set aside a $34,494.43 judgment presumably obtained by Laura against Christopher for child support arrearages, concluding that he only owed $112.67 because he paid some support and Laura waived support from September 1999 to May 2003 when she disappeared and from May 2004 to April 2004 by representing to Christopher that Brianna would be adopted.
In December 2004, the Colorado court held a hearing on Christopher's motion to modify parenting time. The court concluded that it had continuing, exclusive jurisdiction over the matter and granted his petition. Because Christopher and Brianna had been separated for five years, the court allowed him up to two supervised visits with Brianna every two months in California and ordered Laura not to interfere with Christopher's reunification and to cooperate by bringing Brianna to therapy or visits.
In February 2005, Christopher received a referral to Hannah House for supervised visits with Brianna in San Diego, but the psychologist could not legally work with the family because he had not yet received the consent forms from Laura. In April 2005, the Colorado court held a hearing on Christopher's motion for relief from disputes regarding parenting time. The court ordered Laura to bring Brianna to Hannah House for visits on May 14 and 15, 2005.
In June 2005, Laura filed a verified petition in San Diego County Superior Court under section 7822 to free Brianna from Christopher's custody and control so that her husband could adopt Brianna. The petition alleged that Christopher had left Brianna in Laura's care and custody from July 10, 2000 to the present without visiting or communicating with her and failed to pay child support from August 1, 1997 to the present. Laura also filed a declaration under the Act declaring, under penalty of perjury, that in 2000 the Colorado court gave her custody and terminated jurisdiction and in December 2004, gave her legal and physical custody of Brianna. The declaration did not list the Colorado court's later orders regarding arrearages and visitation.
A social worker investigated the case for the Agency and filed a report on the petition. At the contested hearing on the petition, the court heard testimony from Laura, Christopher, Brianna's maternal grandmother and Christopher's former girlfriend. The court granted the petition, finding by clear and convincing evidence that Christopher intended to abandon Brianna. Christopher appeals.
We requested supplemental briefing as to whether the trial court abused its discretion in hearing this petition without proceeding in compliance with the Act by first communicating with the Colorado court. (§ 3426, subd. (b).) We have received and considered those submissions.
DISCUSSION
The Act is the exclusive method for determining subject matter jurisdiction for custody proceedings in California. (In re Claudia S. (2005) 131 Cal.App.4th 236, 245.) (The Act is similar to its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA) and case law under the UCCJA is considered authoritative under the Act. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2005) §§ 7:80.3 et seq.).) The purpose of the Act is to, among other things, promote interstate cooperation and avoid jurisdictional conflict and relitigation of another state's custody decisions. (In re A.C. (2005) 130 Cal.App.4th 854, 859-860.) Before hearing the petition in a custody proceeding, the court must examine the court documents and other information supplied by the parties to determine whether a child custody proceeding has been commenced in a court in another state. (§ 3426, subd. (b).) If the court determines that a child custody proceeding has been commenced in a court in another state, it must stay its proceeding and communicate with the court of the other state. (Ibid.)
If a child custody proceeding has been commenced in another state, a California court has a mandatory duty to communicate with that court (§ 3426, subd. (b); In re Aisha B. (1988) 206 Cal.App.3d 1030, 1033-1034 [decided under predecessor statute]; but see, In re C.T. (2002) 100 Cal.App.4th 101, 111 [when a statute does not provide any consequence for noncompliance, the language should be considered directory rather than mandatory, addressing communication requirement for emergency jurisdiction under section 3424, subdivision (d)]), and the failure to communicate with a court in another state after learning of a pending proceeding there is an abuse of discretion (Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1037 [decided under predecessor statute]). Stated differently, a court commits reversible error in failing, when informed of the existence of a similar custody proceeding in another state, to stay the California proceeding and consult with the other court so as to determine whether that court is exercising jurisdiction in substantial conformance with the Act, and to determine which court is the more appropriate forum to litigate the custody issues. (Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 491-493 [decided under predecessor statute].) Even assuming, however, that the trial court's duty to communicate with Colorado was directory, rather than mandatory (In re C.T., supra, 100 Cal.App.4th at p. 111), the court's failure to communicate with Colorado was prejudicial as the parties are in the untenable position of having two states exercising jurisdiction and making child custody determinations regarding Brianna.
The record shows that the parties divorced in Colorado and in 1998, California exercised dependency jurisdiction over Brianna, closing the case in 2000. Laura initiated an arrearages case in Colorado, which the Colorado court decided in October 2004, in January 2005 the Colorado court determined it had continuing, exclusive jurisdiction over the matter and in April 2005, a mere two months before Laura filed the instant petition, the Colorado court issued an order regarding Christopher's visitation rights. Although Laura did not list the latter two orders in her declaration under the Act, the social worker mentioned them in her report and Christopher testified regarding the existence of these orders. Despite this knowledge, the trial court never inquired about the Colorado proceeding or communicated with the Colorado court.
Except in emergency situations (§ 3424), a California court may not modify a child custody determination made by a court of another state unless a California court has " home state" or " significant connection" jurisdiction to make an initial determination (§ 3421, subd. (a)(1) & (2)) 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." (§ 3423.)
A " modification" includes a child custody determination made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination. (§ 3402, subd. (k).)
The instant proceeding to terminate Christopher's parental rights is a child custody proceeding within the meaning of the Act (§ 3402, subd. (d)) and the April 2005 Colorado visitation order was a child custody determination as defined by the Act. (§ 3402, subd. (c).) Because the trial court had notice of the Colorado proceeding, it had a sua sponte duty to communicate with the Colorado court before hearing Laura's petition. (§ 3426, subd. (b); In re Marriage of Pedowitz (1986) 179 Cal.App.3d 992, 1003 [decided under predecessor statute].) There is no evidence in the record, however, showing that (1) the trial court communicated with the Colorado court (§ 3410, subd. (d)); (2) the Colorado court determined it no longer had exclusive, continuing jurisdiction or California would be a more convenient forum (§ 3423, subd. (a)); or (3) any court determined that the child, the child's parents, and any person acting as a parent do not presently reside in Colorado (§ 3423, subd. (b)).
Laura suggests that the trial court's failure to communicate with Colorado was not prejudicial because Colorado lost jurisdiction due to the intervening California dependency action and thus could not issue any orders. After the California dependency proceeding, however, she continued to acknowledge the jurisdiction of the Colorado court. Unless the Colorado and California courts communicate, both courts will continue to exercise jurisdiction over these parties and potentially issue conflicting orders. We reject Laura's suggestion that the trial court proceeded with the petition under conditions it deemed appropriate under section 3426, subdivision (c)(3), as there is no indication in the record that the trial court considered the jurisdictional issue.
We decline to decide which state has subject-matter jurisdiction as this issue was never addressed below and Laura has questioned the authenticity of the Colorado court orders located in the superior court file. We hold that the trial court abused its discretion by failing to communicate with the Colorado court before hearing the petition and this matter is reversed and remanded for a determination of whether California has subject matter jurisdiction under the Act. In light of our decision, Lauren's request for judicial notice of documents related to the 1998 dependency proceeding is moot.
Although we express no opinion on the outcome of the jurisdictional determination, it appears that Laura engaged in forum-shopping, filing this petition in California even though Christopher continued to reside in Colorado and sought to enforce his parental rights there. (Colo. Rev. Statutes Ann. § 14-13-202, subd. (1)(b); see also, § 3422, subd. (a)(2).) The purpose of the Act, however, is to eliminate such jurisdictional competition and conflict. (Kumar v. Superior Court (1982) 32 Cal.3d 689, 695 [decided under predecessor statute].) We also express no opinion on the merits of Laura's petition, except to note that her arguments on appeal ignore Christopher's recent efforts to reunify with Brianna.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
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