DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KELLY KAY LUNSFORD,
Appellant,
v.
KARA ENGLE and JAKE PHILLIPS,
Appellees.
No. 4D19-774
[January 22, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 502015DR011293
NB.
John F. Schutz of John F. Schutz, PL, Palm Beach Gardens, for
appellant.
No appearance for appellees.
GERBER, J.
A grandmother appeals from a Florida court’s order dismissing her
action seeking temporary custody of her grandson. The Florida court
dismissed the action for lack of initial custody jurisdiction, on the ground
that an Oregon court already had exercised jurisdiction over the child.
The grandmother raises two arguments: (1) because Florida is the
child’s home state, and because the Oregon court’s jurisdiction was limited
to exercising temporary emergency jurisdiction while the child was in
Oregon, the Florida court erred in not exercising initial custody
jurisdiction over the child; and (2) the Florida court violated the
grandmother’s due process rights when it communicated with the Oregon
court during a jurisdiction hearing without allowing the grandmother to
participate.
We agree with both of the grandmother’s arguments. Therefore, we
reverse and remand for the Florida court to: (1) communicate to the
Oregon court that the Florida court will be exercising initial custody
jurisdiction over the child; (2) allow the parties to participate in this
communication if they so request; (3) disregard any orders which the
Oregon court entered after the Oregon court had completed its exercise of
temporary emergency jurisdiction; and (4) begin its exercise of initial
custody jurisdiction with the grandmother’s verified petition for temporary
custody.
Procedural History
In December 2014, the child was born in Palm Beach County. The
child resided with his mother and grandmother at the grandmother’s home
in Palm Beach County until the child was three months old.
In March 2015, when the child was three months old, the mother and
father left Florida with the child. Ten days later, the mother and father
reached Oregon with the child. At that time, a domestic violence incident
occurred when the father struck the mother while she was driving and the
child was in a rear seat, causing them to get into an accident. The Oregon
Department of Human Services (“Oregon DHS”) sheltered the child and
petitioned the Oregon court to exercise temporary emergency jurisdiction
over the child. The Oregon court granted the petition. The mother
returned to Florida without the child and resumed living at the
grandmother’s home.
In August 2015, when the child was eight months old, Oregon DHS
fostered the child with his step-grandmother in Palm Beach County.
Oregon DHS did not foster the child with the grandmother, because the
mother was living with the grandmother. The mother later left town again
with the father.
In November 2015, when the child was eleven months old, the
grandmother, through counsel, filed a verified petition for temporary
custody with the Florida circuit court. In the petition, the grandmother
argued the Florida court had initial custody jurisdiction because:
[T]he . . . child has resided continuously in the State of Florida
since birth on December 14, 2014, until the travel from the
state with his biological mother and alleged father in March
2015. [The child’s] absence from jurisdiction from March
2015 through August 2015 was not due to establishment of
residence in Oregon, or any other state. From August 2015
through the present, the . . . child continues to reside in Palm
Beach County.
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The grandmother also filed a motion for judicial communication with
the Oregon court pursuant to section 61.519, Florida Statutes (2015). The
grandmother filed the motion for judicial communication to clarify that
Florida had initial custody jurisdiction.
The Florida court granted the grandmother’s motion for judicial
communication and scheduled a hearing with the Oregon court.
In May 2016, when the child was seventeen months old, the jurisdiction
hearing occurred between the Florida court and the Oregon court. The
Florida court began the hearing by saying it had received from the Oregon
attorney general’s office a memo opining that the Oregon court should
retain jurisdiction over the child. The following discussion then occurred:
[FLORIDA COURT] (to the grandmother’s counsel): You want
to go ahead and respond to [the Oregon attorney general’s
memo]?
[GRANDMOTHER’S COUNSEL]: I do. And, Judge, let me give
you a copy of some documentation that would appear to be
pertinent to that issue. Judge, this case was --
[OREGON COURT]: I’m sorry, just a minute. I’m sorry. I’m
happy to have you all put on the record whatever objections
you want, but this is a conferring call. It’s not really a hearing.
And, Judge, you agree with me that Oregon retains
jurisdiction, and . . . I have other matters that I have to deal
with. I’m not sure that I’m prepared to hear any objection on
that side. Is there any reason why we need to do that?
[FLORIDA COURT]: Not particularly. I mean, according to
this memo, [the Department of Children and Families (DCF)]
in Florida is not taking the case. Just going through the
memo, it’s undisputed that Oregon has jurisdiction and [has
the child] under their care . . . that once the Court has
temporary emergency jurisdiction, the Court and State
become the home state of the Child so long as no custody
proceeding in another state has been commenced and if
determination, if that had been finalized. There is no action
being taken by Florida. DCF has on multiple occasions
declined to accept the case. Florida got this case through an
[Interstate Compact on the Placement of Children] and is
doing sort of a courtesy supervision. Oregon, again, has
jurisdiction over the Child, but it’s also in the best interest
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that the case be heard. It’s moving forward in Oregon. The
biological parents have apparently conceded to Oregon having
jurisdiction. The biological parents, one of them was in
custody or is currently in custody in Texas. The Mother has
wandered around and has come back to Florida, and at some
point moved back in with the [grandmother] . . . . And then
[Oregon DHS] . . . said, [“]You can’t live with the mother if
you’re going to have the Child there; too; that’s not in the
Child’s best interest.[”] So - -
[OREGON COURT]: Well, that’s not exactly accurate, but it’s
close enough at this point. If you need to refer to this memo
--
[FLORIDA COURT]: I think the memo outlines pretty clear
that Oregon has jurisdiction over this case.
[OREGON COURT]: I agree with you. And . . . I have a lot of
people in the courtroom here, and I don’t see a need to hear
anymore because we have been working on this and been
talking about it for a long time. So Oregon will retain
jurisdiction, and I think that pretty much concludes the
matter. Is that good with you?
[FLORIDA COURT]: Good with me.
[OREGON COURT]: All right. Thank you very much.
In August 2016, when the child was twenty months old, Oregon DHS
requested the Oregon court to terminate the mother’s parental rights.
Oregon DHS argued the mother was an unfit parent due to severe mental
health issues and her behavior, which manifested neglect and
abandonment of the child. Oregon DHS also argued termination was in
the child’s best interests, and it had “identified two potential adoptive
placements, both of whom are relatives to [the child].” The request did not
identify the relatives who were the potential adoptive placements.
Our record contains no information regarding the outcome of Oregon
DHS’s request for the Oregon court to terminate the mother’s parental
rights, or any other information regarding the Oregon court’s proceedings.
In June 2018, when the child was nearly three-and-a-half years old,
the grandmother, through new counsel, filed with the Florida court a
motion to disregard the Oregon court’s orders based on the Oregon court’s
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lack of jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”). The motion argued, in pertinent part, “Any
Orders entered in Oregon [were] void as Florida continued to have subject
matter jurisdiction of all proceedings involving the . . . child. . . .”
The Florida court held a hearing on the grandmother’s motion. At the
hearing, the grandmother’s new counsel raised five arguments: (1) lack of
subject matter jurisdiction can be raised at any time; (2) under the
UCCJEA, because the child was born in Florida and returned to Florida,
Florida was the child’s home state and therefore had initial custody
jurisdiction; (3) also under the UCCJEA, the Oregon court had only
temporary emergency jurisdiction; (4) the fact that DCF declined to accept
supervision over the child, and that the parents had conceded to Oregon
having jurisdiction, were irrelevant because parties cannot confer
jurisdiction under the UCCJEA; and (5) under the UCCJEA, the Florida
court and the Oregon court violated the grandmother’s due process rights
by not letting her original counsel be heard during the jurisdiction hearing
two years earlier.
Despite the grandmother’s arguments, the Florida court denied the
grandmother’s motion to disregard the Oregon court’s orders based on the
Oregon court’s lack of jurisdiction. The Florida court then entered an
order dismissing the grandmother’s action for lack of jurisdiction.
This appeal followed. The grandmother raises two arguments:
(1) under the UCCJEA, because Florida is the child’s home state, and
because the Oregon court had only temporary emergency jurisdiction, the
Florida court erred in not exercising initial custody jurisdiction; and
(2) the Florida court violated the grandmother’s due process rights when
it communicated with the Oregon court during the jurisdiction hearing
without allowing the grandmother to participate.
Our Review
“We review de novo [a] trial court’s ruling that it lacked subject matter
jurisdiction under the UCCJEA.” Barnes v. Barnes,
124 So. 3d 994, 995
(Fla. 4th DCA 2013). Applying de novo review, we agree with the
grandmother’s arguments. We address each argument in turn.
1. Subject Matter Jurisdiction Under the UCCJEA
“The UCCJEA is a jurisdictional act that governs subject matter
jurisdiction over child custody matters.” McAbee v. McAbee,
259 So. 3d
134, 139 (Fla. 4th DCA 2018) (citation omitted).
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“The general purposes of the UCCJEA are to avoid jurisdictional
competition and conflict with other courts in child custody matters;
promote cooperation with other courts; insure that a custody decree is
rendered in the state which enjoys the superior position to decide what is
in the best interest of the child; deter controversies and avoid relitigation
of custody issues; facilitate enforcement of custody decrees; and promote
uniformity of the laws governing custody issues.” McIndoo v. Atkinson,
159 So. 3d 227, 229 n.1 (Fla. 4th DCA 2015) (citation omitted).
“Under the UCCJEA, jurisdictional priority lies in the child’s home
state.”
Barnes, 124 So. 3d at 995 (citation omitted). Within Florida’s
codification of the UCCJEA, that jurisdictional priority arises from sections
61.503(7) and 61.514(1)(a), Florida Statutes (2015).
Section 61.503(7) provides, “‘Home state’ means the state in which a
child lived with a parent or a person acting as a parent for at least 6
consecutive months immediately before the commencement of a child
custody proceeding. In the case of a child younger than 6 months of age,
the term means the state in which the child lived from birth with any of the
persons mentioned.” § 61.503(7), Fla. Stat. (2015) (emphasis added).
Section 61.514(1)(a), Florida Statutes (2015), provides, in pertinent
part, “a court of this state has jurisdiction to make an initial custody
determination . . . if . . . [t]his state is the home state of the child on the date
of the commencement of the proceeding . . . .” § 61.514(1)(a), Fla. Stat.
(2015) (emphasis added); see also
Barnes, 124 So. 3d at 996 (“[S]ection
61.514(1)(a) permits the exercise of home state jurisdiction if, at any time
during the six months preceding the filing of the custody proceeding, Florida
qualified as the child’s home state.”) (emphasis added; citation omitted).
Within Oregon’s codification of the UCCJEA, section 109.751, Oregon
Statutes (2015), entitled “Temporary Emergency Jurisdiction,” provides, in
pertinent part:
(1) A court of this state has temporary emergency jurisdiction
if the 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.
(2) If there is no previous child custody determination that is
entitled to be enforced . . . and a child custody proceeding has
not been commenced in a court of a state having jurisdiction
. . . a child custody determination made under this section
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remains in effect until an order is obtained from a court of a
state having jurisdiction . . . If a child custody proceeding has
not been or is not commenced in a court of a state having
jurisdiction . . . a child custody determination made under
this section becomes a final determination if the
determination so provides and this state becomes the home
state of the child.
(3) If there is a previous child custody determination that is
entitled to be enforced . . . or a child custody proceeding has
been commenced in a court of a state having jurisdiction . . .
any order issued by a court of this state under this section
must specify in the order a period that the court considers
adequate to allow the person seeking an order to obtain an
order from the state having jurisdiction . . . The order issued
in this state remains in effect until an order is obtained from
the other state within the period specified or the period
expires.
....
OR. REV. STAT. § 109.751 (2015) (emphasis added).
Oregon’s temporary emergency jurisdiction statute mirrors Florida’s
temporary emergency jurisdiction statute, section 61.517, Florida Statutes
(2015). See K.I. v. Dep’t of Children & Families,
70 So. 3d 749, 751 (Fla.
4th DCA 2011) (under section 61.517, “the court of another state may
exercise temporary jurisdiction in an emergency situation to protect a child
even though the court with initial custody jurisdiction has exclusive,
continuing jurisdiction”).
Here, Oregon had temporary emergency jurisdiction over the child
when the child was injured in the Oregon car accident, because that event,
caused by domestic violence between the father and mother while the child
was in the car, constituted an emergency in which the child was subjected
to mistreatment. OR. REV. STAT. § 109.751(1) (2015).
However, on the date that the grandmother filed her temporary custody
petition in Florida, Florida had initial custody jurisdiction over that
petition, because Florida remained the child’s home state. § 61.514(1)(a),
Fla. Stat. (2015). Florida remained the child’s home state because within
a portion of the six months before the grandmother’s petition, the child
was younger than six months of age, and had lived in Florida from birth.
§ 61.503(7), Fla. Stat. (2015). Cf.
Barnes, 124 So. 3d at 996 (“The mother
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left Florida after living here with the two children for approximately ten
months and within the six-month period prior to the father’s filing of the
petition, thereby making Florida the home state of the two minor children
at the time of the petition. Thus, the trial court erred in declining to
exercise jurisdiction on the grounds that the home state of the minor
children was Colorado under the UCCJEA.”).
Based on the foregoing, the Florida court erred in: (1) failing to exercise
initial custody jurisdiction during the hearing with the Oregon court after
the grandmother filed her temporary custody petition; (2) denying the
grandmother’s motion to disregard the Oregon court’s orders based on the
Oregon court’s lack of initial custody jurisdiction; and (3) dismissing the
Florida case for lack of initial custody jurisdiction.
2. Communication Between Courts
Section 109.731, Oregon Statutes (2015), entitled “Communication
Between Courts,” provides, in pertinent part:
(1) A court of this state may communicate with a court in
another state concerning a proceeding arising under [the
UCCJEA].
(2) The court may allow the parties to participate in the
communication. If the parties are not able to participate in
the communication, they must be given the opportunity to
present facts and legal arguments before a decision on
jurisdiction is made.
....
OR. REV. STAT. § 109.731 (2015) (emphasis added). As can be seen under
the Oregon communication statute, subsection (2)’s first sentence uses the
permissive word “may” to describe the parties’ ability to participate in the
communication between courts. But subsection (2)’s second sentence
uses the mandatory word “must” to describe the parties’ ultimate ability
to present facts and legal arguments before a jurisdiction decision is made.
Florida’s version of the UCCJEA’s “Communication Between Courts”
statute, section 61.511, Florida Statutes (2015), contains mandatory
language throughout subsection (2)’s second sentence. Section 61.511
provides, in pertinent part:
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(1) A court of this state may communicate with a court in another
state concerning a proceeding arising under this part.
(2) The court shall allow the parties to participate in the
communication. If the parties elect to participate in the
communication, they must be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made.
....
§ 61.511, Fla. Stat. (2015) (emphasis added).
As our sister court held in Johnson v. Johnson,
88 So. 3d 335 (Fla. 2d
DCA 2012), “[w]e construe the words ‘shall’ and ‘must’ in [section
61.511(2)] to impose a mandatory duty upon the trial court that must be
performed before ruling.”
Id. at 338 (emphasis added). See also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
112 (2012) (under the “Mandatory/Permissive Canon,” “[m]andatory
words impose a duty; permissive words grant discretion.”).
Here, however, the Florida court erred in not performing this mandatory
duty to “allow the parties to participate in the communication . . . [and] be
given the opportunity to present facts and legal arguments before a
decision on jurisdiction is made.” § 61.511(2), Fla. Stat. (2015). If the
Florida court had performed this mandatory duty, then perhaps the
Florida court and the Oregon court would have concluded that the Oregon
attorney general’s opinion incorrectly interpreted UCCJEA’s jurisdictional
requirements.
The facts that the Oregon court interrupted the grandmother’s counsel
from participating in the communication does not excuse the Florida
court’s failure to perform its duty under section 61.511. Even though
Oregon’s section 109.731(2)’s first sentence uses the permissive word
“may” to describe the parties’ ability to participate in the communication
between courts, section 109.731(2)’s second sentence uses the mandatory
word “must” to describe the parties’ ultimate ability to present facts and
legal arguments before a jurisdiction is made.
Further, the fact that Florida’s DCF declined to accept supervision over
the child, and that the parents had conceded to Oregon having
jurisdiction, should have been irrelevant to the Florida court. Under the
UCCJEA, neither DCF nor the parents could agree to initial custody
jurisdiction in Oregon when no such jurisdiction existed. See In re
D.N.H.W.,
955 So. 2d 1236, 1238 (Fla. 2d DCA 2007) (under the UCCJEA,
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“[p]arties cannot agree to jurisdiction over the subject matter where none
exists, and the defense of lack of subject matter jurisdiction can be raised
at any time”).
In sum, given the ultimate mandatory nature of both Oregon’s and
Florida’s statutes that a party has a due process right to be heard, the
Florida court had a mandatory duty to correct the Oregon court and
ensure that the grandmother’s argument was heard. See Johnson,
88 So.
3d at 339 (“Section 61.511(2) operates as a due process provision.”).
Thus, reversal is required on this ground as well. See Haugabook v.
Jeffcoat-Hultberg,
219 So. 3d 65, 67 (Fla. 4th DCA 2016) (“[T]he failure to
allow a party to participate in the communication with a court in another
state requires reversal [under section 61.511].”).
Conclusion
Based on the foregoing, we reverse the Florida court’s orders dismissing
this case for lack of initial custody jurisdiction, and denying the
grandmother’s motion to disregard any orders which the Oregon court
entered after the Oregon court had completed its exercise of temporary
emergency jurisdiction.
On remand, the Florida court shall: (1) communicate to the Oregon
court that the Florida court will be exercising initial custody jurisdiction
over the child; (2) allow the parties to participate in this communication if
they so request; (3) disregard any orders which the Oregon court entered
after the Oregon court had completed its exercise of temporary emergency
jurisdiction; and (4) begin its exercise of initial custody jurisdiction with
the grandmother’s verified petition for temporary custody.
Reversed and remanded for proceedings consistent with this opinion.
DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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