Filed 3/14/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re GINO C. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

ERICK P. et al.,

Defendants and Appellants.

 D064336

 (Super. Ct. No. J518615 A-B)

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia A. 

Bashant, Laura J. Birkmeyer, and David B. Oberholtzer, Judges. Reversed.

Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and 

Appellant Erick P.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant 

and Appellant Sabrina R.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel and Paula J. Roach, Deputy County Counsel for Plaintiff and Respondent.
2

INTRODUCTION

Father and mother appeal a judgment declaring their minor children dependents 

and denying placement of the children with father. Father contends the juvenile court 

erred in assuming permanent subject matter jurisdiction over the matter because the court

did not comply with the requirements of the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.) beforehand.1 Mother joins in 

this contention to the extent it inures to her benefit. Father and mother additionally 

contend the court failed to find by clear and convincing evidence placement of the 

children with father would be detrimental to the children. They also contend the court 

erred in determining father was a custodial parent at the time the dependency arose and, 

consequently, the court applied the wrong standard in determining whether to place the 

children with him.

We need not address the latter two contentions because respondent San Diego 

County Health and Human Services Agency (Agency) concedes, and we agree, the court 

did not properly comply with the UCCJEA before assuming permanent subject matter 

jurisdiction. We therefore reverse the judgment and remand the matter for further 

proceedings.

 

1 Further statutory references are to the Family Code unless otherwise stated.
3

BACKGROUND2

Detention and Petition

Mother and the children, all of whom are United States citizens, were travelling by 

bus to Nevada from Mexico, where they had lived for four years. While the bus was 

stopped at a border patrol checkpoint in San Clemente, California, mother told a border 

patrol agent she and the children were in danger from the other people on the bus. When 

the agent went to check on the children, they were in a deep sleep and did not respond to 

the agent's attempts to awaken them.

Mother appeared to be mentally ill and/or under the influence of drugs. She 

admitted she had smoked methamphetamine earlier in the day. She was arrested and 

taken to jail for being under the influence of a controlled substance. The children were 

taken to a hospital, where they tested negative for illegal drugs. They were then taken to 

Polinsky Children's Center.

An Agency social worker interviewed the children. They were very active and 

had difficulty focusing and sitting still. They told the social worker they had been living 

with their parents in Mexico. They were heading to Nevada to stay with their maternal 

grandmother. They did not attend school and they sometimes saw their father hit their 

mother. One child said mother disciplined them by pulling their hair or hitting them with 

a belt or her open hand. 

 

2 This case has a complex factual background. We confine our summary to the 

facts necessary to provide context for and resolve the UCCJEA issue.
4

When mother was released from jail, she stated she could not appear at the 

detention hearing and asked the social worker to take care of the children, as she needed 

to go to Nevada to be with her mother. The Agency subsequently filed a petition under 

Welfare and Institutions Code section 300, subdivision (b), alleging the children were at 

substantial risk of harm because mother was unable to provide regular care for them due 

to her mental illness or substance abuse.

Detention Hearing

Mother did not appear at the detention hearing and father's whereabouts were not 

then known, although the Agency believed he resided in Mexico. Minors' counsel asked 

the court to take temporary jurisdiction since the children had been living in Mexico for 

the past few years. The court (Judge Oberholtzer) indicated it could not take temporary 

emergency jurisdiction at that point, but it could make temporary orders, which it did. 

The court set a hearing to address the UCCJEA issue, with the jurisdiction and 

disposition hearing to trail behind. 

UCCJEA and First Jurisdiction and Disposition Hearing

Mother appeared telephonically at the next hearing. Father's whereabouts were 

still unknown. Both mother's counsel and the Agency's counsel acknowledged the 

UCCJEA issue. When questioned by the court (Judge Bashant), mother confirmed the 

children were United States citizens, but had lived in Mexico the preceding four years. 

Mother also stated there had not been any custody proceedings involving the children 

anywhere else. Based on mother's statements, the court took temporary emergency 
5

jurisdiction over the matter. The court then continued the jurisdiction and disposition 

hearing to allow the Agency to further attempt to locate father.

Second Jurisdiction and Disposition Hearing

Mother appeared telephonically at a second jurisdiction and disposition hearing. 

Father's counsel appeared, but father, who lived in Mexico and could not be reached by 

telephone, did not appear. Regarding the UCCJEA issue, the Agency posited that, since 

the court had already assumed temporary emergency jurisdiction and there was no 

evidence of any custody orders out of Mexico, the court had the discretion to contact a 

Mexican judge to discuss whether Mexico was incline to take the case. The court (Judge

Oberholtzer) responded, "Well, my reading of the UCCJEA is that I remain more or less 

passive in this. If somebody else wants to bring a custody proceeding in what they 

perceive to be the home state, that's up to them." The court later clarified it would not be 

contacting anyone in Mexico unless requested by the Agency. The court subsequently 

continued the hearing once again.

Third Jurisdiction and Disposition Hearing

Mother appeared telephonically at a third jurisdiction and disposition hearing. 

Father's counsel also appeared, but father, who again could not be reached by telephone, 

did not appear. The court (Judge Oberholtzer) revisited the UCCJEA issue. The court 

determined Mexico was the children's home state. The court also determined it could 

take temporary emergency jurisdiction because the Agency's detention of the children 

was necessary to protect them from actual or threatened abuse or mistreatment. Since the 

court was not aware of any child custody proceeding in Mexico involving the children 
6

and since neither parent had indicated an intent to initiate a child custody proceeding in 

Mexico, the court determined its temporary emergency jurisdiction became permanent 

and California became the children's home state. The court subsequently set a trial on the 

issue of whether the children were dependents under Welfare and Institutions Code 

section 300, subdivision (b).

Settlement Conference

Mother and father both appeared telephonically for a pretrial settlement 

conference. At the conference, the court (Judge Birkmeyer) again raised the UCCJEA 

issue. The court noted Judge Bashant had taken temporary emergency jurisdiction and 

clarified neither parent had asked a Mexican court to make custody orders involving the 

children. The court also accepted the parties' representation Judge Oberholtzer had 

decided "while Mexico may have been the home state of the children, in light of the fact 

that the parents hadn't gone to any court, they have never been to a court involving 

custody issues or family law issues, that it was his opinion that no further inquiry needed 

to be made andthat is with the Mexican authorities, and that the temporary emergency 

jurisdiction could go forward." The court then found that, while both children "are 

reported to have a home state in [Mexico], in light of the fact that the courts there have 

not been called upon toto determine the custody issues with respect to these children, I 

do find that the temporary emergency jurisdiction will now be a permanent jurisdiction

. . . ." The court also adopted the prior findings of Judge Oberholtzer regarding the 

UCCJEA.
7

DISCUSSION

Father contends the court erred by assuming permanent jurisdiction without first

contacting Mexico or providing a time-limited order giving the parties an opportunity to 

file a custody action in Mexico. The Agency concedes the court erred in assuming 

permanent jurisdiction. We agree. 

Section 3421, subdivision (a), of the UCCJEA provides "the exclusive 

jurisdictional basis for making a child custody determination by a court of this state." 

(§ 3421, subd. (b).) Under section 3421, subdivision (a), a court has jurisdiction to make 

an initial child custody determination only if : (1) this state is the child's "home state,"

meaning the state in which the child lived with a parent or a person acting as a parent for 

at least six consecutive months immediately before the child custody proceeding was 

commenced (§§ 3421, subd. (a)(1) & 3402, subd. (g)); (2) the child's home state has 

declined to exercise jurisdiction (§ 3421, subd. (a)(2) & (3)); or (3) the child does not 

have a home state (§ 3421, subd. (a)(4)).3 "Physical presence of, or personal jurisdiction 

 

3 Section 3421 specifically provides: "(a) Except as otherwise provided in Section 

3424, 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, or was the home state of the child 

within six months before the commencement of the proceeding and the child is absent 

from this state but a parent or person acting as a parent continues to live in this state. [¶] 

(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 under Section 3427 or 3428, 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 
8

over, a party or a child is not necessary or sufficient to make a child custody 

determination." (§ 3421, subd. (c).)

Here, the parties agree the children's home state is Mexico because they lived there 

for six consecutive months immediately preceding the filing of this case. (§ 3402, subd. 

(g).) Although the court could have contacted Mexico to address the jurisdictional issue 

(§ 3410, subd. (a)), the court opted not to do so and there is no other evidence Mexico 

declined to exercise its home state jurisdiction. (§ 3421, subd. (a)(3).) Accordingly, the 

court had no jurisdictional basis under section 3421, subdivision (a), to make a child 

custody determination.

Nonetheless, a court without jurisdiction under section 3421, subdivision (a), 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." (§ 3424, subd. (a).) However,

temporary emergency jurisdiction does not confer authority to make a permanent child 

custody determination. (In re C. T. (2002) 100 Cal.App.4th at 101, 108.) Where, as 

appears here, there was no existing child custody proceeding in the home state and no 

prior child custody determination entitled to enforcement, a child custody determination 

made by a court with temporary emergency jurisdiction remains in effect until an order is 

obtained from the home state. (§ 3424, subd. (b).) If no child custody proceeding is

 

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 under Section 3427 or 3428. [¶] (4) No court of any 

other state would have jurisdiction under the criteria specified in paragraph (1), (2), or 

(3)."
9

initiated in the home state, the determination becomes final "if it so provides and this 

state becomes the home state of the child." (Ibid., italics added.)

The court's efforts to comply with the UCCJEA fell short because the court

misinterpreted section 3424, subdivision (b), as allowing the court's temporary 

emergency jurisdiction to automatically convert to permanent jurisdiction if the parents 

did not initiate child custody proceedings in Mexico. Instead, the statute precludes a 

child custody determination by a court exercising temporary emergency jurisdiction from 

becoming final until this state becomes the child's home state. (See In re C. T., supra, 

100 Cal.App.4th at p. 113 [a court may address the merits of a dependency petition after 

determining an emergency exists if the court can assert jurisdiction under the nonemergency jurisdiction provisions of the UCCJEA]; see also 91A West's U. Laws Ann. 

(2014) U. Child Custody Jurisdiction and Enforcement Act, com. to § 204 [an emergency 

custody determination made under subsection (b) may become a final custody 

determination when the state that issued the determination becomes the child's home 

state.)

On this record, the only apparent avenue for the court to obtain home state 

jurisdiction over the children is for Mexico to decline to exercise its home state

jurisdiction. (§ 3421, subd (a)(3).) Since the court opted to remain passive and did not 

contact Mexico, Mexico has not been given an opportunity to decide whether to exercise 

its home state jurisdiction. Therefore, the court erred in assuming permanent jurisdiction 

over the matter. 
10

The court may have based its interpretation of section 3424, subdivision (b), on 

language in In re Angel L. (2008) 159 Cal.App.4th 1127 (Angel L.) stating, "Once the 

court detained the children and declared them dependents of the court, its temporary 

emergency jurisdiction ripened into permanent jurisdiction and California became their 

home state." (Id. at p. 1140.) We conclude any reliance on this statement was misplaced.

Preliminarily, we note the court in Angel L., supra, 159 Cal.App.4th 1127, did not 

cite any authority for this statement nor did the court purport to be interpreting any

particular provision of the UCCJEA when it made the statement. Cases are not authority 

for issues not addressed. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) 

In addition, any discussion in Angel L., supra, 159 Cal.App.4th. 1127, of the 

UCCJEA's temporary emergency jurisdiction provisions was dicta because the custody 

determination at issue in Angel L. was made under the UCCJEA's predecessor, the 

Uniform Child Custody Jurisdiction Act (UCCJA). The two statutes differ significantly 

in their treatment of emergency jurisdiction. As we observed in In re C. T., supra, 100 

Cal.App.4th at pp. 112-113: "One of the reasons the UCCJA was revised and the 

[UCCJEA] enacted was to clarify when a court could take emergency jurisdiction over a 

child. The [UCCJEA] made clear that emergency jurisdiction could be exercised to 

protect a child only on a temporary basis until the court with appropriate jurisdiction 

issued a permanent order." 

As the legislative history of the UCCJEA likewise explained, the UCCJA provided 

"that the grounds for taking emergency jurisdiction are on an equal footing with the other 

grounds for taking jurisdiction, including the 'home state' ground." Conversely, the 
11

UCCJEA provides for "temporary emergency jurisdiction, that can ripen into continuing 

jurisdiction only if no other state with grounds for continuing jurisdiction can be found 

or, if one is found, that state declines to take jurisdiction." (Sen. Com. on Judiciary,

Analysis of Sen. Bill No. 668 (1999-2000 Reg. Sess.) as introduced Apr. 6, 1999, p. 3, 

italics added; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis 

of Sen. Bill No. 668 (1999-2000 Reg. Sess.) as amended Apr. 12, 1999, p. 2; Assem. 

Com. on Judiciary, Analysis of Sen. Bill No. 668 (1999-2000 Reg. Sess.) as amended 

Apr. 12, 1999, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill 

No. 668 (1999-2000 Reg. Sess.) as amended July 15, 1999, pp. 2-3.) 

Angel L. is also factually distinguishable. Unlike in this case, there was evidence 

in Angel L. suggesting California may have actually been the child's home state because 

the child and a parent lived in California immediately preceding the filing of the 

dependency action. (Angel L., supra, 159 Cal.App.4th at pp. 1132, 1134, 1137, fn. 4.) 

There was also evidence the court had repeated, substantial contact with the other 

possible home state and that state showed no interest in assuming jurisdiction over the 

child. (Id. at pp. 1133-1135, 1139.) Consequently, we conclude Angel L. provides no 

support for the proposition temporary emergency jurisdiction converts to permanent 

jurisdiction absent this state becoming the home state under the non-emergency 

provisions of the UCCJEA.
12

DISPOSITION

The judgment is reversed. The case is remanded to the juvenile court to conduct 

further proceedings consistent with this opinion.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

IRION, J.