Monday, February 4, 2013
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Court Clarifies ‘Home State’ Jurisdiction in Case of Child Whose Mother Was Incarcerated in Mexico
By JACKIE FUCHS, Staff Writer
The Los Angeles Superior Court had no “home state” jurisdiction over the child of a woman who illegally entered the United States and was later convicted and incarcerated in Mexico for murder, this district’s Court of Appeal held yesterday.
Div. One said that because the child had not resided in California with her mother “immediately” prior to the commencement of the dependency proceeding, there was no jurisdiction on the home state basis under the Uniform Child Custody Jurisdiction and Enforcement Act.
Gloria A., as she was identified by the court, was born in 2004 in Nayarit, Mexico. Sometime after killing Gloria’s father, Gloria’s mother fled Mexico to the United States, bringing Gloria with her.
On Jan. 21, 2009, United States immigration officers apprehended the mother and returned her to Mexico, where she was convicted of murder and sentenced to prison. When the mother was arrested, she left Gloria in the care of her boyfriend, who lived in Pacoima.
In February 2009, Guadalupe S., Gloria’s paternal grandfather, arrived in Los Angeles and attempted to take custody of Gloria from the boyfriend. When the boyfriend refused to give Gloria up, Guadalupe notified the police who, in turn, notified the Department of Children and Family Services. The paternal grandfather filed a petition in family court in Mexico seeking custody of the child, and the DCFS filed a dependency petition in Los Angeles Superior Court alleging Gloria lacked parental care and support.
The family court in Mexico awarded the grandfather temporary guardianship of Gloria. The child remained in Los Angeles, however, while Superior Court Referee Robert Stevenson, who has since retired, received evidence and heard argument on the issue of whether the court had subject matter jurisdiction over the dependency proceedings under the Uniform Act.
Among the evidence Stevenson considered was a letter rogatory from the Mexican family court demanding repatriation of Gloria to Mexico and claiming that California courts lacked jurisdiction over the child because she had not lived in the state for the requisite time before the filing of the dependency petition.
Stevenson ruled that Gloria had been here the requisite amount of time, and that any orders made in Mexico were without jurisdiction. He ordered that Gloria remain with her maternal cousin, who lived in Sylmar, and denied the grandfather’s subsequent petition asking that Gloria be placed in his care.
Shortly thereafter, Stevenson terminated the mother’s parental rights.
The DCFS moved to dismiss the grandfather’s appeal from the denial of his petition on the ground that he lacked standing to challenge the juvenile court’s subject matter jurisdiction.
The panel disagreed, saying that the grandfather had standing as an “aggrieved person,” since as a result of the court’s assumption of jurisdiction he was unable to enforce the temporary guardianship order of the Mexican family court in his favor and would be unable to enforce any subsequent order of that court pertaining to Gloria.
But, the panel said, Stevenson had improperly found jurisdiction based on the “home state” provision of the Uniform Act, which exists “to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state’s or country’s custody decisions and facilitate enforcement of another state’s or country’s custody decrees.”
Justice Frances Rothschild, writing for the unanimous panel, noted that under the Uniform Act there are five ways in which subject matter jurisdiction may be established. The first, and the one chosen by Stevenson, is through “home state” jurisdiction, which applies if the child lived in the state with a parent or a person acting as a parent for at least six consecutive months (including temporary absences) immediately before the commencement of the child custody proceeding.
The dependency proceeding for Gloria commenced on February 18, 2009. Her mother was arrested in California and deported to Mexico on or about January 21, 2009. Thus, regardless of when Gloria and the mother entered California, Rothschild said, their consecutive months of living together in the state ended almost a month before the dependency proceeding commenced.
The DCFS countered that the statutory requirement that Gloria have lived with her mother “immediately” prior to the commencement of the dependency proceeding could not be applied literally because in nearly every dependency case in which the child is removed from the parent, the removal precedes the filing of the dependency petition.
The panel said, however, that while there may be a short gap between removal from custody and the filing of a petition, under the Rules of Court and the Welfare and Institutions Code, it cannot exceed 48 hours.
While they would not say whether 48 hours would be sufficiently “immediate” for jurisdictional purposes under the Uniform Act, the justices said that they were “certain that 28 days between the date Gloria ceased living with the mother and the date the DCFS filed its dependency petition is not ‘immediate’ under any sensible interpretation of the word.”
Nor was the mother’s deportation and incarceration in Mexico on a murder charge in any sense temporary, the panel said. Even if the mother had been released from prison in Mexico the day after she was incarcerated, she would not have been eligible for readmission to the United States for five years unless the attorney general granted a waiver, which seemed unlikely given that her first entry into the country was illegal.
The panel reversed Stevenson’s finding that there was subject matter jurisdiction based on the “home state” requirement, and remanded with directions for him to determine whether there was an alternative basis for jurisdiction under the Uniform Act. If there was not, the panel said, the juvenile court judge should proceed in accordance with the provisions of the act.
Presiding Justice Robert Mallano and Justice Jeffrey Johnson concurred in the opinion.
Janice A. Jenkins represented Guadalupe S., under appointment by the Court of Appeal.
William D. Thetford of the County Counsel’s Office represented the Los Angeles County Department of Children and Family Services.
Linda J. Vogel, under appointment by the Court of Appeal, appeared on behalf of Gloria A.
The case is In re Gloria A.; 13 S.O.S. 551.
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