San Diego Cnty. Health & Human Servs. Agency v. Cynthia C. (In re R.L.)

4 Cal.App.5th 125

208 Cal.Rptr.3d 523

IN RE R.L., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.Cynthia C. et al., Defendants and Appellants.

D069729

Court of Appeal, Fourth District, Division 1, California.

Filed October 14, 2016

Terence M. Chucas, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia C.

Monica Vogelmann, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo L.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Appellant.

HALLER, J.

Cynthia C. and Gerardo L. appeal from orders terminating parental rights to their daughter, R.L. Gerardo contends the jurisdictional and dispositional findings and orders, and all subsequent orders, must be reversed because the juvenile court did not have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 et seq. (UCCJEA).¹ He also contends the orders must be reversed because he did not receive notice of the proceedings pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 ) (the Hague Service Convention or Convention). Cynthia joins in Gerardo's arguments to the extent they inure to her benefit, but raises no other issues.

The facts of this case present an interesting issue concerning “home state” jurisdiction, as defined by the UCCJEA. R.L. was born in a hospital in San Diego County. Her mother, Cynthia, is a United States citizen. For approximately three years prior to R.L.'s birth, Cynthia did not have a permanent residence. She alternated her time between Tijuana and Las Vegas, but had been primarily living in Tijuana in the months preceding R.L.'s birth. R.L.'s father, Gerardo, is a Mexican national who stayed at various places in Baja California, including an aunt's home in Tijuana. Gerardo could not legally enter the United States. During the juvenile dependency proceedings, both parents became incarcerated. Gerardo was in prison in Baja California. Cynthia was in federal prison in San Diego County. Upon her release from prison, she was prohibited from entering Mexico for three years.

For reasons we shall explain, we conclude that the juvenile court erred when it determined that California was R.L.'s home state under section 3421, subdivision (a). We hold that a temporary hospital stay in a state incident to birth, by itself, is insufficient to confer home state jurisdiction under the UCCJEA. In addition, a social services agency does not become “a person acting as a parent” for purposes of home state jurisdiction by detaining a child in protective custody in an emergency.

We also conclude that the error does not require reversal. The juvenile court had emergency jurisdiction under section 3424 because R.L. was present in California and it was necessary in an emergency to protect her from mistreatment or abuse. Moreover, any alleged procedural error, including the failure to contact the Mexican court, does not constitute a miscarriage of justice. (Cal. Const., art. VI, § 13 ; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ; In re C.T . (2002) 100 Cal.App.4th 101, 111, 121 Cal.Rptr.2d 897 (C.T. ).)

Finally, we reject Gerardo's claim he did not receive proper notice of the proceedings. The Hague Service Convention does not apply where the parent's whereabouts are unknown and a diligent search has been made to locate the parent. The record clearly shows the San Diego County Health and Human Services Agency (Agency) diligently tried to locate Gerardo from the time R.L. was detained in protective custody. Moreover, when Gerardo's whereabouts became known, the Hague Service Convention did not apply because Gerardo voluntarily submitted to the jurisdiction of the juvenile court. We therefore affirm the orders terminating parental rights and freeing R.L. for adoption by her caregivers.

FACTUAL AND PROCEDURAL BACKGROUND

Cynthia C. is the mother of R.L., who is now two years old. Cynthia, a United States citizen, entered California from Mexico to give birth to R.L., who was born at Sharp Chula Vista Medical Center in San Diego County in August 2014. Cynthia and R.L. tested positive for amphetamine and methamphetamine. The Agency detained R.L. in protective custody in a foster home and filed a petition alleging inadequate care. (Welf. & Inst. Code, § 300, subd. (b).)

Cynthia admitted she had a 15–year history of methamphetamine use. She blamed her positive test on secondhand exposure to methamphetamine, explaining that all the people with whom she lived in Tijuana, B.C., Mexico, smoked methamphetamine. She later admitted using methamphetamine during her pregnancy with R.L. Cynthia had some clothing for the baby but lacked other supplies, including a car seat. She had no income. Cynthia said her home in Tijuana was not a safe place for the baby, and she would never take her there. She hoped to find a place to live in the San Diego area. Cynthia said her relatives in Tijuana were drug users, but she had other relatives in California and Mexico.

Cynthia alleged Gerardo L. was R.L.'s father. Gerardo was a Mexican national who lived in Tijuana with his aunt (Aunt). Cynthia provided Aunt's telephone number to the social worker, who telephoned Aunt. Aunt said she would contact Gerardo and ask him to telephone the social worker. The social worker did not hear from Gerardo. Cynthia said Gerardo sometimes came to her house in Tijuana, and gave her address to the social worker. The social worker mailed notice of the dependency proceedings to Gerardo at Cynthia's address, “1972 Ancatilado Dorardo.”

At the September 5, 2014, detention hearing, the juvenile court found that R.L. had only lived in California and thus California was R.L.'s home state under sections 3402, subdivision (g) and 3421. The juvenile court did not contact a court in Mexico.

In an interview with a social worker on September 11, 2014, Cynthia said she traveled between Las Vegas, Nevada and Tijuana, B.C., Mexico, for almost three years to care for her grandmother, who passed away in February 2014. Thereafter she lived in her uncle's house in Tijuana for almost seven months. In mid-August, Cynthia went to her mother's home in Las Vegas, Nevada, hoping to give birth there. While in Las Vegas, Cynthia had a prenatal visit and an ultrasound. She had not received any prenatal care in Mexico. Cynthia returned to Tijuana before the baby was born.

Cynthia told the social worker she had not had any contact with Gerardo since R.L.'s birth and was unable to locate him. On September 22, the social worker submitted parent search and international liaison search requests to locate Gerardo. On October 15, the social worker telephoned Aunt to inquire about Gerardo's whereabouts.

Aunt said she had not seen Gerardo for several months and did not know where he was. The Agency's International Liaison Office could not locate Gerardo through the Mexican civil registry because it did not have Gerardo's place of birth. The Agency sent a request to the Mexican Consulate to search the civil registry, but the Consulate was unable to locate Gerardo's records.

At the jurisdictional and dispositional hearing on October 28, 2014, the juvenile court sustained the Welfare and Institutions Code section 300 petition, removed R.L. from her mother's custody and placed her in foster care, and ordered a plan of reunification services for Cynthia. The court found that the Agency made reasonable efforts to locate and provide notice to the alleged father.

After that hearing, the Agency continued its efforts to locate Gerardo. On November 12, 2014, the International Liaison sent a request to the Mexican social services agency (DIF) in Tijuana asking them to conduct a home visit and to publish a media announcement if they could not locate Gerardo. A DIF social worker went to Cynthia's address. There, she spoke to a man who told her Gerardo lived with his family in a pink house down the street. The social worker then went to the pink house, which was Aunt's home. Aunt said Gerardo was addicted to crystal methamphetamine and she had directed him to leave her home. He did not work and did whatever he wanted to do. Gerardo stayed in the same house with Cynthia and other drug addicts. On various occasions, Cynthia told Aunt that Gerardo was not R.L.'s father, and she had named him as the father to receive social services benefits.

On January 8, 2015, the Agency received a media announcement confirmation from DIF. Gerardo did not respond to the media announcement.

In reports prepared for the six-month review hearing, the Agency recommended the juvenile court terminate Cynthia's reunification services and set a hearing to select and implement a permanency plan under Welfare and Institutions Code section 366.26. Cynthia did not make any attempt to participate in services and the Agency was unable to locate Gerardo. The Agency filed a declaration of due diligence describing its efforts to locate Gerardo in the U.S. and Mexico.

At the six-month review hearing on May 20, 2015, the juvenile court found that reasonable efforts were made to locate and notify Gerardo of the proceedings. The court also found that Cynthia had failed to contact and visit R.L. for six months, terminated reunification services, and set a Welfare and Institutions Code section 366.26 hearing.

In August 2015, the social worker received two letters from Cynthia stating she was in federal custody in San Diego. Cynthia was detained by U.S. authorities in May for crossing the international border with drugs. After learning that Cynthia was incarcerated in San Diego, the Agency facilitated visits between Cynthia and R.L. Cynthia remained behind a plexiglass partition while she watched R.L....