200 P.3d 689 (Wash. 2009), 79938-5, In re Custody of A.C.

Docket Nº:79938-5.
Citation:200 P.3d 689, 165 Wn.2d 568
Opinion Judge:CHAMBERS, J.
Party Name:In re the CUSTODY OF A.C. v. Holly Marie Cork, Appellant. David Nagel and Anita Bangert, Respondents,
Attorney:Andrea M. Poplawski, Burke & Associates Law Office, PLLC, Spokane, WA, for Appellant. David James Crouse, Attorney at Law, Spokane, WA, for Respondent.
Judge Panel:WE CONCUR: ALEXANDER, C.J., and SANDERS, J.
Case Date:February 05, 2009
Court:Supreme Court of Washington
 
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Page 689

200 P.3d 689 (Wash. 2009)

165 Wn.2d 568

In re the CUSTODY OF A.C.

David Nagel and Anita Bangert, Respondents,

v.

Holly Marie Cork, Appellant.

No. 79938-5.

Supreme Court of Washington, En Banc.

February 5, 2009

Argued Feb. 12, 2008.

Andrea M. Poplawski, Burke & Associates Law Office, PLLC, Spokane, WA, for Appellant.

David James Crouse, Attorney at Law, Spokane, WA, for Respondent.

Page 690

CHAMBERS, J.

[165 Wn.2d 571] ¶ 1 A child and his mother are from Montana but moved to Washington. The child's former foster parents, still living in Montana, asked Washington courts to grant them custody. Washington has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), ch. 26.27 RCW; see also Unif. Child Custody Jurisdiction & Enforcement Act, 9 pt. 1A U.L.A. 655 (1997). Under that act, because the foster parents live in Montana and seek to modify a custody determination initially made by Montana, and because Montana has never declined jurisdiction, Washington courts do not have jurisdiction to determine custody. Washington's exercise of jurisdiction in this case both offends the goals and violates the provisions of the UCCJEA. We reverse both the trial court and the Court of Appeals and remand to the trial court with orders to dismiss.

FACTS

¶ 2 A.C. was born to Holly Cork on August 28, 1997, in Montana when Cork was 14.1 Both A.C. and Cork were placed in foster care by a Montana court. On January 7, 1999, the district court in Montana awarded the State legal custody of both Cork and A.C. On January 27, 2000, the State of Montana petitioned for permanent custody of A.C. [165 Wn.2d 572] and for termination of Cork's parental rights. A.C. was placed with David Nagel and Anita Bangert (the Nagels) as foster parents. The trial court terminated Cork's parental rights but the Montana Supreme Court reversed the termination, concluding that due process required that Cork have an attorney during the formulation of her treatment plan. In re A.F.-C., 307 Mont. 358, 370, 37 P.3d 724 (2001). In 2002, Cork obtained her GED, completed a 75-hour nurse's aide certification, and participated in a transition program for reunification with A.C. Montana's temporary custody of A.C. was terminated, A.C. was returned to Cork's custody, and on May 15, 2002, Cork and A.C. moved to Spokane, Washington.2

¶ 3 In early October 2002, Washington's Child Protective Services (CPS) received an anonymous phone call from someone who claimed that A.C. had been punched and thrown around by his mother. The caller claimed that Cork had extensive involvement with Montana's social services, that she " wasn't ever interested in parenting but was interested in winning in court," and that she had received A.C. " back on a technicality" and then " fled the state of Montana." Ex. R115. Around the same time, the Nagels sent a letter to the Washington Department of Social and Health Services (DSHS) stating that A.C. had been returned to Cork " due to a legal technicality" and offering to provide " foster/adoptive care" to A.C. " should the need arise." Ex. R114.

¶ 4 DSHS began an investigative assessment of Cork. Ex. R115. A DSHS case worker contacted Cork's social worker in Montana. The social worker opined that the Nagels had called with the anonymous allegations of abuse, noting the similarities between the call and the Nagel's letter and stating, " it's too much information." Id. She said that the [165 Wn.2d 573] Nagels were vindictive when A.C. was returned to his mother. She also mentioned that Cork " is and was interested [in] parenting," and that " Holly did not flee [to Washington], she had the support of the [Montana] agency." Id. DSHS ended its investigation, finding little or no risk. The case worker concluded that although A.C. was still defiant and did not believe that Cork was his real mother, he was in no danger of abuse and should be fine with counseling. Cork did not provide A.C. with the recommended counseling.

¶ 5 On October 29, 2002, although they continued to live in Montana, the Nagels filed a petition in Spokane County for nonparental custody of A.C. The Nagels' petition claimed Cork was not a suitable custodian and requested that she have only limited visitation

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with her son. The Washington trial court ordered Cork to allow the Nagels visitation with A.C. Later the court appointed a guardian ad litem for A.C. The Nagels then moved for a temporary order of visitation and for a bonding and attachment assessment. In August 2003, the trial court granted temporary custody of A.C. to the Nagels in Montana and set out a schedule of visitation for Cork. In October 2003, Cork obtained new counsel and in January 2004, she moved to dismiss the nonparental custody petition, arguing for the first time that Washington did not have subject matter jurisdiction 3 under the UCCJEA. The court denied the motion and at trial awarded custody of A.C. to the Nagels in Montana, with Cork having visitation rights and paying child support. Cork appealed. The Court of Appeals affirmed. In re Custody of A.C., 137 Wash.App. 245, 153 P.3d 203 (2007).

[165 Wn.2d 574] ANALYSIS

¶ 6 The UCCJEA arose out of a conference 4 of states in an attempt to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved. UCCJEA prefatory note, 9 pt. 1A U.L.A. at 651; UCCJEA § 101 cmt., 9 pt. 2A U.L.A. at 657. It is, in a sense, a pact among states limiting the circumstances under which one court may modify the orders of another. See UCCJEA prefatory note, 9 pt. 1A U.L.A. at 649-51. Most states have adopted the UCCJEA in order to reduce conflicting orders regarding custody and placement of children.

¶ 7 Both Montana and Washington have adopted the UCCJEA, making the act the exclusive basis to determine jurisdiction of this interstate child custody dispute. RCW 26.27.201(2); Mont.Code Ann. § 40-7-201(2). The UCCJEA determines when one state may modify an " initial child custody determination" made by another state. RCW 26.27.201(1), .221. Under the UCCJEA, a Washington...

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