Ventura Cnty. Human Servs. Agency v. A.C. (In re E.R.)

238 Cal. Rptr. 3d 871, 28 Cal. App. 5th 74
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 10, 2018
Docket2d Juv. No. B288376
StatusPublished
Cited by8 cases

This text of 238 Cal. Rptr. 3d 871 (Ventura Cnty. Human Servs. Agency v. A.C. (In re E.R.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ventura Cnty. Human Servs. Agency v. A.C. (In re E.R.), 238 Cal. Rptr. 3d 871, 28 Cal. App. 5th 74 (Cal. Ct. App. 2018).

Opinion

GILBERT, P. J.

*76The courts, not the parties, decide jurisdiction.

A.C. (Mother) and E.R. (Father) appeal orders of the juvenile court terminating their parental rights to their children E.R. and D.R., minors coming under the juvenile court law. ( Welf. & Inst. Code, §§ 300, subds. (b)(1) & (g), 366.26.)1 We conclude, among other things, that the juvenile court had jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) ( Fam. Code, § 3421 ) after a Nevada juvenile court declined to exercise jurisdiction. We conditionally reverse and remand because the investigation required by the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ) was not complete.

*77FACTS

The Nevada Juvenile Court Proceedings

In April 2017, the Clark County, Nevada Department of Family Services (DFS) filed a juvenile dependency petition in the Clark County, Nevada juvenile court ("Nevada court"). Mother had recently given birth to twins, E.R. and D.R., in Nevada. The babies tested positive for "amphetamines," because Mother used methamphetamines during her pregnancy.

The DFS petition stated that Mother lives in California and came to Nevada "to *874sign her kids over to her cousin." Mother's parental rights to two other children were recently terminated by the Ventura County Superior Court ("juvenile court" or "California court"). Mother's and Father's "drug use and out of control behavior put[ ] [the twins] at risk of not having their needs met." Mother and Father have "extensive criminal" histories and both have "perpetrated domestic violence."

The Nevada court sustained the DFS juvenile dependency petition on May 24, 2017. The following month, the parents appeared in the Nevada court and were advised about their visitation rights. The twins were placed in a foster home in Nevada.

During the next two months, the Nevada court judge and the California court judge, Judge Cody, had telephone conversations concerning which court should exercise jurisdiction. The Nevada court judge expressed concern whether Nevada should maintain jurisdiction, noting: 1) the "parents may have just came to Las Vegas to give birth to the children" and then return to California, and 2) both parents have pending California criminal cases.

In July, the Nevada court declined to exercise further jurisdiction, ruling: "California is to take jurisdiction of the case"; "California does not have a problem taking jurisdiction and the parents have all of their family in California." Judge Cody informed the Nevada court in a telephone call that the Ventura County Human Services Agency (HSA) was "willing to file a Petition" in California. The Nevada court ordered the "DFS to transfer the files to California."

The California Court Proceedings

On July 31, 2017, HSA filed juvenile dependency petitions ( § 300, subds. (b)(1), (g) & (j) ) in the California court, alleging, among other things, that Mother and Father were unable to care for and protect the infants. HSA repeated the allegations of the Nevada DFS petitions relating to substance *78abuse, criminal conduct, abuse and neglect. In its detention report, HSA reported, "The children are currently placed in a confidential foster home in Nevada."

At the August 1, 2017, hearing, the parents appeared with counsel. Judge Cody said, "So we're here at a detention hearing on a case that I became familiar with when I received a telephone call from a Nevada court several weeks ago .... [T]he decision was made ... with the agreement of both courts that California should exercise general jurisdiction."

Mother's counsel said, "Nevada would have been the appropriate forum. The children remain in Nevada. But I think the Nevada court has made a decision that's not a decision of this Court and so their remedy would lie in Nevada I would assume."

The juvenile court found section 300 governs, and HSA "has the responsibility for the temporary care and placement of the children."

In the jurisdiction/disposition report, HSA recommended that family reunification services for Mother be bypassed because: 1) in a prior dependency court proceeding, Mother's parental rights to the twins' older siblings were terminated; and 2) Mother had a significant substance abuse history. (§ 361.5, subd. (b)(11), (13).) The juvenile court found the allegations of the juvenile dependency petitions true and ruled, "Services to the mother are bypassed ...." HSA subsequently recommended that Father not receive reunification services. After an evidentiary hearing where Father testified, the court found that it was not in the best interests of the children to offer Father services.

*875In a section "366.26 WIC Report," HSA recommended that the parental rights of Mother and Father be terminated and a permanent plan for adoption be established for the children. It said, "[M]other and father had an open dependency case with ... older siblings in the County of Ventura and had fled to Las Vegas, Nevada for fear that the newborn babies would be removed from their care." It noted that the juvenile court previously found Mother has "substance abuse issues, criminal conduct, unaddressed mental health issues and reoccurring domestic disputes with significant others." Father "was found to have substance abuse issues, criminal conduct, reoccurring domestic disputes ... and [he] should have known about the mother's substance abuse while pregnant with the children." He "failed to provide support and care or assume a parental role, placing the children at risk of abuse or neglect." On February 21, 2018, the court held a section 366.26 hearing, terminating Mother's and Father's parental rights and finding the children are adoptable.

*79ICWA

On a parental notification of Indian status form, Father reported the children may be eligible for membership in a federally recognized Indian tribe. The paternal great-grandmother "would know more." He provided her name and phone number.

HSA's initial ICWA report stated that Mother and Father "reported having Native American ancestry." Mother claimed Apache ancestry. In a subsequent report, HSA said it sent notice to the eight federally recognized Apache tribes and received responses that the children were not members or entitled to enroll. These two HSA reports, however, contained nothing about contacting the paternal great-grandmother that Father had mentioned. The juvenile court found ICWA did not apply.

DISCUSSION

Jurisdiction

The parents contend the California court lacked subject matter jurisdiction over the children. They claim only the Nevada court has jurisdiction.

"The UCCJEA is the exclusive method for determining subject matter jurisdiction for child custody proceedings in California." ( In re A.C.

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Cite This Page — Counsel Stack

Bluebook (online)
238 Cal. Rptr. 3d 871, 28 Cal. App. 5th 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ventura-cnty-human-servs-agency-v-ac-in-re-er-calctapp5d-2018.