Filed 10/10/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re E.R. et al., Persons 

Coming Under the Juvenile 

Court Law.

2d Juv. No. B288376

(Super. Ct. Nos. J071566, 

J071567)

(Ventura County)

VENTURA COUNTY HUMAN

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

A.C. et al.,

 Defendants and Appellants.

The 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 

 

1 All statutory references are to the Welfare and 

Institutions Code unless otherwise stated.
2

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.

FACTS

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 sign 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 
3

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 abuse, 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.”
4

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.

In 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 
5

Mother’s and Father’s parental rights and finding the children 

are adoptable.

ICWA

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 greatgrandmother “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. (2017) 13 Cal.App.5th 661, 668.) A 

dependency proceeding is a child custody proceeding within the 

meaning of this act. (Ibid.) Family Code section 3421, “sets forth 

four alternative bases for subject matter jurisdiction . . . . (Ibid.)

2

Section 3421, subdivision (a) provides, in relevant part:

 

2 All further statutory references are to the Family Code.
6

“[A] court of this state has jurisdiction to make an initial 

child custody determination only if any of the following are true:

“(1) This state is the home state of the child on the date of 

the commencement of the proceeding . . . .

“(2) A court of another state does not have jurisdiction 

under paragraph (1), or a court of the home state of the child has 

declined to exercise jurisdiction on the grounds that this state is 

the more appropriate forum . . . and both of the following are 

true: 

“(A) The child and the child’s parents, or the child and at 

least one parent or a person acting as a parent, have a significant 

connection with this state other than mere physical presence.

“(B) Substantial evidence is available in this state 

concerning the child’s care, protection, training, and personal 

relationships.

“(3) All courts having jurisdiction under paragraph (1) or 

(2) have declined to exercise jurisdiction on the ground that a 

court of this state is the more appropriate forum to determine the 

custody of the child . . . .

“(4) No court of any other state would have jurisdiction 

under the criteria specified in paragraph (1), (2) or (3).” (Italics 

added; In re A.C., supra, 13 Cal.App.5th at pps. 668-669.) 

The parents contend the California court erred by 

exercising jurisdiction over the children because Nevada was the 

children’s “home state” and the Nevada court had jurisdiction. 

HSA agrees that Nevada was initially the home state for 

the children. It notes the children “lived from birth with persons 

‘acting as a parent’ - i.e., their Nevada foster parents,” and it 

consequently concedes that “Nevada was likely the twins’ ‘home 

state.’” 
7

But HSA notes the California court obtained jurisdiction on 

July 19, 2017, the date the Nevada court declined to exercise 

jurisdiction. The Nevada court judge ruled: 1) “California does 

not have a problem taking jurisdiction”; 2) “the parents have all 

of their family in California”; 3) “Judge Cody stated their agency 

[HSA] is willing to file a Petition there in California”; 4) 

“California is to take jurisdiction of the case”; and 5) the Nevada 

DFS agency must “transfer the files to California.” 

Here the Nevada court determined that the California 

court was “the more appropriate forum to determine the custody 

of [the children].” (§ 3421, subd. (a)(3).) Where the out-of-state 

court declines “to exercise jurisdiction over the children’s cases on 

the ground California was the more appropriate forum,” the 

California court has “subject matter jurisdiction over their cases 

under section 3421, subdivision (a)(3), regardless of whether it 

also had jurisdiction under section 3421, subdivision (a)(2).” (In 

re A.C., supra, 13 Cal.App.5th at p. 678, italics added.) 

The parents argue it was improper for the Nevada court to 

communicate with the California court before declining 

jurisdiction. But states have adopted uniform child custody acts 

“to promote cooperation between state courts in custody matters.” 

(State ex rel. Aycock v. Mowrey (Ohio 1989) 544 N.E.2d 657, 660.) 

A court of one state may communicate with a court of another 

state before deciding to decline jurisdiction. (§ 3410, subd. (a); 

Johnson v. Ellis (Miss. 1993) 621 So.2d 661, 664.) Doing so 

comports with common sense and ensures the judges are properly 

informed of the facts.

The parents contend the Nevada court order divesting 

jurisdiction was not accompanied by valid findings that 

“California was the more convenient” forum. 
8

But decisions to decline jurisdiction are upheld without 

findings by the out-of-state court. (In re A.C., supra, 13 

Cal.App.5th at pp. 677-678.) “‘[W]hen a home state declines 

jurisdiction in any manner that conveys its intent not to exercise 

jurisdiction over a child in connection with a child custody 

proceeding, . . . such . . . refusal is tantamount to a declination of 

jurisdiction . . . .’” (Id. at p. 675, some italics added.) This is the 

case even where the foreign court makes no findings on the more 

convenient forum issue. In In re A.C., a foreign court did not 

respond to e-mails regarding whether it would exercise 

jurisdiction. The court held that “the Mexico judicial authorities’ 

inaction by failing to timely respond to the court’s e-mails was 

tantamount to their declination to exercise jurisdiction over the 

children’s cases on the ground California was the more 

appropriate forum.” (Ibid., italics added.) 

Here the Nevada court expressly found it was declining 

jurisdiction in favor of the California court. That authorized the 

California court to take jurisdiction even though the children 

were born in Nevada. (§ 3421, subd. (a)(3); In re A.C., supra, 13 

Cal.App.5th at p. 678; Schneer v. Llaurado (2015) 242 

Cal.App.4th 1276, 1287; In re Marriage of Richardson (2009) 179 

Cal.App.4th 1240, 1243.) 

The parents contend the juvenile court abused its 

discretion by agreeing to take jurisdiction because Nevada was 

the better and more convenient forum. But both the Nevada and 

California courts reasonably concluded California was the proper 

forum. The California court found the parents’ residence in 

California was “a factor on which state would have the most 

appropriate contacts and information.” (In re Marriage of Nurie

(2009) 176 Cal.App.4th 478, 510 [parent’s “continued residence in 
9

California gives this state a legitimate connection to the custody 

dispute”].) 

The Nevada court was concerned “the parents” would not 

“be able to come back to Nevada to participate in their case plan 

services or visit.” In deciding the issue of an “inconvenient 

forum,” courts may properly consider: 1) “[t]he distance between 

the court in this state and the court in the state that would 

assume jurisdiction” (§ 3427, subd. (b)(3)); and 2) “[t]he degree of 

financial hardship to the parties in litigating in one forum over 

the other” (id., subd. (b)(4)). The Nevada court noted: 1) Father 

has “a criminal case in California,” 2) Mother has “a criminal 

hearing in California today,” and 3) Mother has “relatives in 

California.” It noted its concern about “Nevada keeping the case 

when [the] parents may have just [come] to Las Vegas to give 

birth to the children” and then return home to California. 

HSA also argued the Nevada court’s “decision made sense” 

because: 1) California was better suited to hear the case; 2) the 

California court recently had a dependency case involving the 

children’s half-siblings; 3) the California court was familiar with 

the family; 4) Mother told the Nevada social worker “she lived in 

Oxnard and came to Nevada only to give the [children] to her 

cousin”; and 5) the extended family lived in California.

A relevant factor is “[t]he familiarity of the court of each 

state with the facts and issues in the pending litigation.” (§ 3427, 

subd. (b)(8).) The juvenile court had that familiarity. The 

parents have not shown why the factors HSA highlights do not 

support the court’s decision. 

The two courts could also properly consider why the 

parents went to Nevada. The findings of the Nevada court show 

the parents did not go there to establish residency. HSA said 

their motive was connected to the pending California court’s 
10

dependency case involving the twins’ older siblings and the 

parents. In its report to the court, 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.” 

(Italics added.) Both courts recognized the roots of the Nevada 

case were in the earlier California dependency proceeding. 

The parents claim the juvenile court prevented them from 

presenting “evidence on the question of which forum [Nevada or 

California] was more convenient.” HSA responds the record does 

not support this claim. We agree.

At the August 1, 2017, hearing, the parents appeared with 

their counsel. The juvenile court informed the parties that the 

Nevada court decided California should exercise jurisdiction. 

Mother’s counsel said, “[M]y client continues to believe that 

Nevada would have been the appropriate forum. The children 

remain in Nevada.” He requested the court “to reserve” that 

issue. The court responded, “I guess we can revisit it.” The court 

thereafter held 10 hearings on this case. 

HSA contends that after the August 1st hearing the 

parents abandoned the inconvenient forum issue. We again 

agree. They had opportunities to raise the issue and present 

evidence in the 10 hearings after the August 1st hearing, but 

they did not do so at any of those hearings. Nor did the juvenile 

court prevent them from presenting evidence on this issue. 

The parents argue the Nevada court’s order declining 

jurisdiction is invalid. 

HSA responds: 1) the parents participated in the Nevada 

proceedings, 2) they had the right to appeal the Nevada decision, 

3) they did not appeal, and 4) they are consequently making an 
11

untimely and improper collateral attack on a final Nevada 

judgment. We agree.

In the juvenile court, Mother’s counsel said, “I think the 

Nevada court has made a decision that’s not a decision of this 

Court and so [the parents’] remedy would lie in Nevada I would 

assume.” (Italics added.) But the parents did not appeal the 

Nevada court judgment and it is now final. 

Section 3453 provides, “A court of this state shall accord 

full faith and credit to an order issued by another state . . . .” “A 

final judgment in one State, if rendered by a court with 

adjudicatory authority over the subject matter and persons 

governed by the judgment, qualifies for recognition throughout 

the land.” (Baker v. General Motors Corp. (1998) 522 U.S. 222, 

233 [139 L.Ed.2d 580, 592], italics added.) Final judgments of 

other states are conclusive on issues properly resolved in those 

judgments. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951; 

In re Mary G. (2007) 151 Cal.App.4th 184, 201.) 

ICWA

The parents claim HSA did not properly investigate the 

possible Indian heritage of the children. They contend the 

juvenile court erred by ruling ICWA did not apply.

Under ICWA, the “juvenile court and social services 

agencies have an affirmative duty to inquire at the outset of the 

proceedings whether a child who is subject to the proceedings is, 

or may be, an Indian child.” (In re K.M. (2009) 172 Cal.App.4th 

115, 118-119.) The social services agency has a continuing duty 

to provide additional tribal notice if it discovers an ICWA notice 

error or omission. (In re Desiree F. (2000) 83 Cal.App.4th 460, 

471-472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 

[“Notice is mandatory, regardless of how late in the proceedings a 

child’s possible Indian heritage is uncovered”].)
12

In the “parental notification of Indian status” form, Father 

said the paternal great-grandmother would have information 

about the family’s Indian heritage. The parents claim HSA did 

not interview her. 

HSA agrees and concedes that 1) it “has not substantially 

complied with ICWA notice requirements,” 2) the order 

“terminating parental rights should be vacated,” and 3) “[t]he 

reversal . . . [should] be only for the limited determination of the 

applicability of ICWA.”

DISPOSITION

The orders terminating parental rights are reversed and 

the matter is remanded with instructions for the juvenile court 1) 

to require HSA to interview the great-grandmother about 

possible Indian heritage, and 2) to determine whether ICWA 

applies; and 3) if the court rules ICWA does not apply, to 

reinstate the orders terminating parental rights. 

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
13

Ellen Gay Conroy, Judge

Superior Court County of Ventura

______________________________

Konrad S. Lee, under appointment by the Court of Appeal, 

for Defendant and Appellant A.C.

Mitchell Keiter, under appointment by the Court of Appeal, 

for Defendant and Appellant E.R.

Leroy Smith, County Counsel, Joseph J. Randazzo, 

Assistant County Counsel, for Plaintiff and Respondent.