Filed 1/26/18 In re J.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John W. Parker, Judge. (Retired judge of the Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

V.Y. (father) is the father of K. (born in 2011), J. (born in 2012), and S. (born in 2015). The children came to the attention of the San Bernardino County Children and Family Services (CFS) when it received a referral alleging that father was using and/or selling drugs. The juvenile court found that it had dependency jurisdiction based on the father’s history of drug use and domestic violence, along with the poor condition of his home and the fact that the children were missing school and not receiving development services. (Welf. & Inst. Code, § 300, subd. (b).[1]) The court granted custody to K.L. (mother). Father appeals, contending: (1) the court failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) by failing to recognize either Indiana or Pennsylvania as the only states with jurisdiction to alter the original custody order; and (2) there was insufficient evidence that the children were at risk for substantial physical harm. We affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. Detention.

Father and mother are the parents of K., J., and S. When the parents were living together, mother sought and obtained a domestic violence protective order against father, based on her contention that he had choked her and put a knife to her throat. In June 2016, they separated and entered into a stipulated custody order in Indiana, which gave physical custody of K. and S. to mother and physical custody of J. to father, allowing each parent to focus on the special needs of K. and J. (sometimes referred to as “the boys”), who both had severe forms of autism and were not able to verbally communicate.

In summer 2016, mother was living in Pennsylvania, and father took the boys to California. Mother said father was supposed to have the boys for the summer only, but the children did not want to return. Mother filed a police report in Pennsylvania, but she was told she had to go to Indiana to make a report about the family law order violation. Mother was financially unable to have the children returned to Pennsylvania, but she kept in contact with father to maintain a relationship with the children.

During a prior CFS investigation in December 2016, all three children were residing with father, and the social worker observed the home to be dirty, with “items . . . all over the place.” The children were sleeping on mattresses without sheets, “going to sleep at inappropriate times,” and not receiving services to address their special needs. Father admitted that he smoked marijuana, and he left the children with a neighbor while doing so. S. was sent back to mother’s custody. Mother expressed fear of “telling [father] things” because she believed that he would disappear with the children and she would not be able to talk to them again.

Also in December 2016, mother and father modified their custody agreement via a document prepared in Nevada, but they never filed in any court in any state. It provided that mother would have custody of S., while father had custody of the boys. Once mother finished school in June 2017, everyone would move to South Carolina, where the parents would share responsibility and parenting of the children.

About March 2017, CFS received a referral that father was using or selling drugs and possessed a firearm which he threatened to use. The social worker investigated and observed father’s home to be clean. Father denied using drugs, but he tested positive for cocaine, and the woman he was with tested positive for both cocaine and marijuana. The social worker spoke with mother, who denied any knowledge that father was using drugs. She said that she possessed the means to care for the children and wanted full custody. CFS wanted to continue to assess mother while the boys were in foster care.

On March 9, 2017, CFS filed a section 300 petition under subdivision (b), based on father’s history of domestic violence and substance abuse problems, and that mother should have known that placing the boys with him created a risk of serious harm or neglect. CFS alleged the home was in poor condition, the boys were missing school, not getting services, and hazardous materials were within reach. CFS noted that mother lived in Pennsylvania and father lived in California. Thus, CFS requested the court to “make that inquiry regarding UCCJEA issues.” The court found a prima facie case for detention.

B. Jurisdiction/disposition.

According to the jurisdiction/disposition report filed on March 29, 2017, CFS recommended that the allegations in the petitions be sustained as to father, but not mother, and that custody of the children be granted to mother, the noncustodial parent. The report noted that in 2006 and 2007 there was a dependency case involving father’s son, V., from another relationship. It was alleged that father had a history of illicit drug use and several criminal arrests, with one conviction. Father failed to drug test and participate in reunification services, failed to consistently visit with V., and chose to move to Georgia. The report noted that father denied domestic violence; however, he had been arrested for such at least three times, once in 2003 in California, and two other times in Indian and Pennsylvania involving mother. Father admitted using cocaine once, one or two weeks before the children were removed, but his girlfriend stated that they both used cocaine prior to the children being detained and once after they were detained. Father tested positive for cocaine on March 1, 2017, and positive for both cocaine and marijuana on March 10; however, his drug tests on March 16 and 17, 2017, were negative.

The social worker spoke with a social worker in Pennsylvania, who had investigated mother for alleged child abuse but concluded the allegations were unfounded. The Pennsylvania social worker had no concerns about the children being placed in mother’s care. An evaluation of mother’s home was conducted, and the home was found to be clean and free of health and safety hazards. The social worker learned that since the start of the 2016-2017 school year, K. had 36 unexcused absences, with 23 “tardies” from kindergarten.

On May 3, 2017, CFS provided additional information to the court regarding father’s criminal history. CFS submitted investigation reports and photos regarding father’s arrest for domestic disturbance, strangulation and battery on January 19, 2016, in Indiana involving mother. He “grabbed her around her neck and began to choke her,” while K. was present. He was charged with two felonies (strangulation and domestic battery committed in the presence of a child less than 16 years of age) and two misdemeanors (domestic battery and interference with the reporting of a crime). However, the deputy prosecuting attorney stated that if father “took a plea deal” and stayed out of trouble for a year, then his case would be dismissed. CFS also submitted police reports showing that in 2010, police responded to a domestic violence disturbance between father and his wife at that time, and police removed a handgun from father’s vehicle.

At the May 5, 2017, pretrial settlement conference, the juvenile court heard argument, sustained the section 300, subdivision (b), allegations as to father, but not mother, and granted custody to mother.

II. DISCUSSION

A. The Juvenile Court Possessed Jurisdiction to Conduct a Dependency Proceeding Pursuant to the UCCJEA.

“California adopted the UCCJEA, formerly UCCJA, in January of 2000. This uniform act is the exclusive method of determining the proper forum in custody disputes involving other jurisdictions. [Citations.] The UCCJEA also governs juvenile dependency proceedings as well as actions to terminate parental rights. [Citation.] There are different circumstances under which our courts are vested with jurisdiction to make a custody determination under Family Code section 3421.” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1173-1174 (Nada R.).) “A California 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, mistreatment or abuse.’ [Citation.] An ‘emergency’ exists when there is an immediate risk of danger to the child if he or she is returned to a parent. [Citations.]” (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1097.)

As father acknowledges in his opening brief, “[he] does not dispute the trial court properly exercised emergency jurisdiction over the minors as he had tested positive for cocaine not only on the day that [K.] and [J.] were taken into custody but at the detention hearing as well.” However, he contends that once the boys were removed from his custody and placed in foster care, the emergency ceased and the juvenile court was obligated to consult either the Indiana or Pennsylvania court under the UCCJEA before altering custody of the boys.

Father’s argument is without merit. “We agree that emergency jurisdiction is short-term and limited. However, we cannot agree that a court may not exercise emergency jurisdiction after the plenary hearing. In In re Stephanie M. [(1994)] 7 Cal. 4th 295, our Supreme Court found that the juvenile court had continuing jurisdiction over the minor pursuant to the Family Code section providing for emergency jurisdiction. While the court did not squarely overrule In re Joseph D. [(1993)] 19 Cal. App. 4th 678, it did uphold ‘continuing jurisdiction because of the emergency presented by the abuse of the child, and the impossibility of returning her immediately to her parents.’ (In re Stephanie M., supra, 7 Cal. 4th at p. 312.) This ruling suggests that an emergency can exist so long as the reasons underlying the dependency exist.” (Nada R., supra, 89 Cal.App.4th at p. 1175.) Here, the court found by clear and convincing evidence that returning the boys to father would place them at substantial risk of harm. No other facts suggest that that risk has been eliminated. When the risk of harm that created the emergency continues, the court should be afforded jurisdiction to prevent such harm. (Ibid.)

Moreover, the juvenile court had continuing jurisdiction over the boys pursuant to Family Code section 3423. That section provides that California courts “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 two additional requirements are met. (Fam. Code, § 3423.) Family Code section 3421, subdivision (a)(1), refers to “home state” jurisdiction, and subdivisions (a)(2)(A) and (B) refer to jurisdiction when the “home state” declines to exercise jurisdiction on grounds that California is a more appropriate forum, the child and a parent have “significant connection” with California, and substantial evidence is available in California.

The original custody order dated June 27, 2016, was issued in Indiana and provided that father would have custody of J., and mother would have custody of K. and S. On December 23, 2016, the parents stipulated to modify custody; however, they never filed the agreement with the court in Indiana. According to the record, by March 2017, K. and J. had been living with father in California for more than six months. Thus, despite father’s claims to the contrary, the boys had been living in California since the summer of 2016, or more than six months. As such, California falls within the definition of the “home state” for the boys because they and father have lived in California for more than six months prior to the beginning of the dependency proceedings. (Fam. Code, § 3421, subd. (a)(1).)

Furthermore, CFS contacted social services in Pennsylvania to evaluate mother’s home for placement of the children. The Pennsylvania social worker had no concerns about the children being placed with mother. Given this contact, Pennsylvania was aware of California’s open dependency case and supported placement of the children with mother.

Based on the foregoing, the provisions of UCCJEA were complied with, and the court properly exercised its jurisdiction in ordering the children placed with mother.

B. Substantial Evidence Supports the Jurisdictional Findings.

Father contends the evidence is insufficient to support the juvenile court’s finding of jurisdiction under section 300, subdivision (b)(1), that the boys were at “‘substantial risk’” for future harm. We disagree.

“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)

“Section 300, subdivision (b) provides a basis for . . . jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent’s inability to provide regular care for the child because of the parent’s mental illness, developmental disability or substance abuse.” (In re James R. (2009) 176 Cal.App.4th 129, 135.) A jurisdictional finding under section 300, subdivision (b) requires “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (Id. at p. 823.) However, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court may consider past events in deciding whether a child currently needs the court’s protection. (Ibid.; In re S.O. (2002) 103 Cal.App.4th 453, 461 [A parent’s “‘past conduct may be probative of current conditions’ if there is reason to believe that the conduct will continue.”].)

With regard to the allegation that father has a history of domestic violence, the evidence shows there are at least three known incidents, including as recent as 2016, against mother which led to father’s arrest and charge of two felonies and two misdemeanors. K. witnessed father’s acts of domestic violence, and mother obtained a protective order against him. Mother was too afraid of father to complain when he did not return the children after their summer visit. She feared that he would disappear with the children and she would not be able to talk to them again. With regard to father’s history of substance abuse problems, he admitted smoking marijuana and he tested positive for cocaine. He used drugs while the children were in his care. While father points out that his subsequent drug tests were negative, CFS responds that there were not many opportunities for subsequent drug tests because the boys were removed in March 2017 and placed with mother in May 2017. Additionally, in the prior dependency case involving V., father’s child from another relationship, father’s use of illicit drugs was noted, along with his failure to submit to drug tests and participate in reunification services. Moreover, since the start of the 2016-2017 school year, K. had 36 unexcused absences and 23 tardy notations in kindergarten while in father’s custody; father’s home was dirty; and the children were not receiving development services to address their special needs. Father was not providing adequate care and support to the children while they were living with him.

We conclude the evidence was sufficient to uphold the section 300, subdivision (b)(1) finding based on a substantial risk the children would suffer serious physical harm.

III. DISPOSITION

The juvenile court’s orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MCKINSTER

J.

MILLER

J.