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In Re Nelson B., A Person Coming Under the Juvenile Court v. Nelson B

April 26, 2013

IN RE NELSON B., A PERSON COMING UNDER THE JUVENILE COURT LAW. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
NELSON B., DEFENDANT AND APPELLANT.



Trial Court: Alameda County Superior Court Trial Judge: Hon. Kimberly M. Briggs (Alameda County Super. Ct. No. OJ12018639)

The opinion of the court was delivered by: Margulies, Acting P.J.

CERTIFIED FOR PUBLICATION

The Alameda County Social Services Agency (the Agency) filed a petition under Welfare and Institutions Code*fn1 section 300, subdivision (b) (section 300(b)) alleging the failure or inability of appellant Nelson B.'s parent or legal guardian to supervise or protect him adequately. Appellant, then age 16, was a runaway living with his girlfriend's family in Oakland. He was born in Honduras and entered the country illegally on his own in 2009. United States Immigration and Customs Enforcement (ICE) apprehended appellant and placed him in the custody of his aunt in Maryland where he lived and attended school for at least six months before running away to California in 2011. After learning of appellant's connection to Maryland, the Agency recommended the petition be dismissed for lack of subject matter jurisdiction. The trial court so ordered, and this appeal followed. We affirm the dismissal.

I. BACKGROUND

Appellant came to the United States illegally from Honduras sometime in 2009, at the age of 13. He initially lived with his paternal aunt, Maria V., in the Washington, D.C. area but he had conflicts with her and apparently ran away in 2010.*fn2 He was picked up by ICE in Texas in the summer of 2010, and put in a shelter operated by Southwest Key Programs, a private, nonprofit providing services for unaccompanied and undocumented minors.*fn3 Appellant was reunified with his aunt in Laurel, Maryland, after she signed a sponsorship agreement and affidavit of support in July 2010, pursuant to section 462 of the Homeland Security Act of 2002. (6 U.S.C. § 279(b).) In the affidavit, Maria V. stated under penalty of perjury she intended to provide "legal representation, economic support, education, schooling, and everything deemed necessary during minor's stay in the United States." Under the sponsorship agreement, ORR agreed to place appellant into Maria V.'s "care and custody" in return for her legally enforceable agreement to, among other things, "[p]rovide for the physical, mental, and financial well-being of the minor," to ensure the minor's presence at future ICE proceedings pertaining to him, and to obtain written permission from ICE if she decided to transfer appellant's custody to another person. Because Maria V. was not a member of appellant's immediate family, she was also required by ORR to obtain "an official, notarized letter of consent from the minor's parents granting custody of the minor."

Appellant ran away again in March 2011, and came to California by himself. He initially lived with friends until he met his 18-year-old girlfriend in the summer of 2011, and began living with her and her mother in Oakland sometime after that. He came to the attention of the Agency in March 2012, when he got into a fight with an adult male at the house and the police were called. After learning appellant was 16 years old, the police took him into protective custody and referred him to the Alameda County Children's Assessment Center. Appellant's girlfriend was seven months pregnant with his child at the time of this event. On March 22, 2012, a petition was filed pursuant to section 300(b) alleging appellant was at substantial risk of serious physical harm or illness as a result of the failure or inability of his parent or legal guardian to supervise or protect him adequately. He was initially placed in a temporary foster home by the Agency. At the detention hearing, the court agreed with the Agency's recommendation the minor be detained while the Agency continued its investigation.*fn4

On April 1, 2012, appellant told his foster parent he was going out to visit his girlfriend, and never returned home. He remained unaccounted for until April 5, 2012, when he was arrested in San Francisco for selling cocaine. A section 602 petition was filed in San Francisco City and County charging appellant with a felony drug count. At appellant's juvenile court hearing in San Francisco on April 12, he admitted to a reduced felony charge of being an accessory after the fact to the commission of a felony. The judge ordered the minor's criminal case transferred to Alameda County for disposition, and the minor was placed at the Alameda County Juvenile Justice Center (juvenile hall). On May 1, 2012, a disposition hearing was held on the section 602 petition in Alameda County. The probation department recommended the court find appellant's legal residence to be in Prince George's County, Maryland because "his legal guardian lives in Maryland," and he had no other family in the United States or ties to Alameda County. The department recommended the matter be transferred back to San Francisco City and County for disposition. The court declined to order a transfer. It ordered appellant detained in juvenile hall, and continued disposition of the delinquency matter pending a section 241.1 hearing,*fn5 which was continued until May 23, 2012.

In an addendum report filed on May 16, Agency social worker, Kim Yancy, recommended the jurisdiction hearing on appellant's section 300 petition, then scheduled for May 17, be continued until after the section 241.1 proceedings were resolved. Yancy provided documentation in the addendum report that appellant's aunt in Maryland had initiated guardianship proceedings for appellant in Prince George's Circuit Court in Maryland in 2010 or 2011, but the case did not advance due to his sudden departure from his aunt's home in early 2011. The attorney in the guardianship proceeding submitted a letter stating, "Due to [appellant's] departure and absence from the State of Maryland for approximately a year now, the State of Maryland did not retain jurisdiction over [him] and we were unable to complete the Guardianship process." The addendum report also attached copies of the sponsorship agreement, affidavit of support, and other documents signed in 2010 by appellant's aunt when the Department of Homeland Security released him to her custody. Over the objection of appellant's trial counsel, the jurisdiction hearing was continued in order to trail the section 241.1 hearing set for May 23, 2012.

In a section 241.1 report jointly submitted by the probation department and the Agency on May 22, 2012, the agencies recommended the court find appellant's residence was Prince George's County, Maryland and the matter be transferred to the juvenile court in that county. The report cited the documents and information pertaining to Maria V.'s sponsorship agreement with the Department of Homeland Security as the basis for the agencies' conclusion appellant's legal residency was in Maryland, not California. In a further memorandum to the court on May 22, 2012, the probation department requested appellant be detained in juvenile hall for release to ICE. Probation advised it had contacted ICE about appellant, and ICE had sent an immigration detainer requesting appellant be held in custody for 48 hours. At the section 241.1 hearing on May 23, the court ordered appellant to remain in juvenile hall if ICE did not pick him up, and continued the disposition hearing until May 31. On May 24, appellant was released from juvenile hall into ICE's custody, and taken to an ORR facility in Seattle, Washington.

In a second addendum report submitted in connection with the May 31 jurisdiction hearing, the Agency recommended the petition be dismissed for lack of subject matter jurisdiction. The report noted appellant was in the custody of ICE in Washington, and had an immigration hearing set for July 12, 2012 in Baltimore, Maryland, having missed his first immigration hearing which had been set for January 2012 in Baltimore due to running away from the home of his immigration sponsor. At the hearing on May 31, the Agency argued: "[Appellant's aunt] had to sign an affidavit promising to support him and to ensure his presence at custody hearings. He is not in custody and he has no legal connection to Alameda County. He has a pregnant girlfriend and he was living with her family, but legally his mother is in Honduras and his custodian is in Maryland, and he is in the custody of the Immigration Service. [¶] There are a variety of reasons why it should be dismissed." Appellant's counsel objected to dismissal and argued appellant was entitled to an evidentiary hearing on the issue.*fn6 Counsel advised he intended to present evidence appellant suffered abuse or neglect in Honduras and that his aunt does not have legal custody of him, including cross-examining social worker Yancy about (1) information she had concerning abuse or neglect, (2) Yancy's contacts with appellant's mother, and (3) whether the court did have jurisdiction. The court agreed to schedule an evidentiary hearing, but advised it would not admit evidence it considered extraneous to the jurisdictional issue.

Prior to the contested hearing on June 20, 2012, appellant's trial counsel submitted a hearing statement in which he stated his intention to call Yancy as his only witness, and served a subpoena for her appearance. The Agency responded with a motion in limine to, among other things, limit the testimony appellant could seek from Yancy. The motion stated: "Ms. Yancy was the worker assigned to this matter until May 21, 2012, at which time the case was reassigned. As such, Ms. Yancy should not be permitted to testify to events relating to this case that occurred after that date. Furthermore, Ms. Yancy should not be permitted to testify to facts that are not related to the issue of jurisdiction." The Agency argued the only relevant facts were whether appellant was physically present in Alameda County, whether he was in the custody of the Agency, and whether he was a legal resident of Alameda County, all questions which could only be answered in the negative, according to the Agency. The Agency maintained having to bring Yancy in to testify would also have been prejudicial because Yancy was not in agreement with the Agency as to matters having nothing to do with the jurisdictional issue. The Agency argued it would confuse and prejudice the proceedings to allow that irrelevant matter to be brought up.

At the hearing on June 20, appellant's counsel argued the court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted in California in Family Code section 3400 et seq., because California would be considered appellant's "home state" for purposes of the statute. (Fam. Code, § 3421, subd. (a)(1).) Counsel sought to cross-examine social worker Yancy in part to establish appellant's contacts with Alameda County were sufficient to establish jurisdiction under the UCCJEA. The court held Yancy's testimony could not support a finding of subject matter jurisdiction in California, and dismissed the section 300(b) petition without prejudice for lack of subject matter jurisdiction. The court explained its ruling as follows: "I don't believe factually that this is [appellant's] home state. He ran away from the east coast. He was living with his aunt. She had custody of him. She signed all of the papers saying that she would be his custodian. He ran away. He meets a nice girl, got her pregnant, was living with her family. That doesn't make California his home state. It just doesn't. So factually I find that this is not his home state. I don't believe this Court has jurisdiction over this issue."

This timely appeal ...


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