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In re A. C.6/28/2005
n 3402, subdivision (a) defined contestant as "a person, including a parent, who claims a right to custody or visitation rights with respect to a child." At the time the dependency petition was filed, neither the D's. nor Agency could claim a right to custody or visitation apart from the dependency proceeding itself. Thus, former section 3403, subdivision (a)(2) would not provide a basis for jurisdiction in the instant case.
c. Former Section 3403, Subdivision (a)(3)
This subdivision stated: "The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. For purposes of this subdivision, 'subjected to or threatened with mistreatment or abuse' includes a child who has a parent who is a victim of domestic violence, as defined in Section 6211." (Former § 3403, subd. (a)(3).)
As applied to the instant case, former section 3403, subdivision (a)(3) corresponds to section 3424, subdivision (a), but allowed emergency protection for a child "neglected or dependent" other than by abandonment, mistreatment, and abuse. Here, there was no neglect by Mother and Father and A. was not "otherwise . . . dependent" or in need of "protection." Her only need was medical care, and there was no showing this care was unavailable outside the dependency system.
d. Former Section 3403, Subdivision (a)(4)
This subdivision provided: "Both of the following conditions are satisfied: [ ] (A) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child. [ ] (B) It is in the best interest of the child that this court assume jurisdiction." (Former § 3403, subd. (a)(4).)
Former section 3403, subdivision (a)(4) corresponds to section 3421, subdivisions (a)(3) and (a)(4), with the addition of the express provision that California's assumption of jurisdiction be in the child's best interest. Former section 3403, subdivision (a)(4) also required, in essence, that no other state had jurisdiction under former section 3403, subdivisions (a)(1), (a)(2), or (a)(3) and that any court with jurisdiction declined to exercise it. Because Mexico had jurisdiction under former section 3403, subdivision (a)(2) and did not decline to exercise it, former section 3403, subdivision (a)(1) would not confer jurisdiction on California.
II. AGENCY'S MOTION TO AUGMENT THE RECORD AND MOTHER'S REQUESTS FOR JUDICIAL NOTICE
A. Introduction
On March 9, 2005, at Agency's request, the juvenile court held a special hearing to address the issue of subject matter jurisdiction. The court concluded it "had subject matter jurisdiction at the time of the true finding made on 2/20/04, and continued to have subject matter jurisdiction since that date." Mother and Father have appealed the March 9, 2005 order (case number D046051). Agency's Motion to Augment the Record and Mother's Requests for Judicial Notice all concern the March 9, 2005 hearing.
B. Agency's Motion to Augment
Agency asks that the record be augmented with the March 9, 2005 juvenile court minute order (exhibit 1); Agency's addendum report prepared for the March 9 hearing (exhibit 2); a February 7 letter to Agency's counsel from the Mexican Consulate (exhibit 3); a February 28 letter, in Spanish, to Agency's counsel from the director of a Tijuana social services
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