Arkansas Dept. of Human Services v. Cox
| Decision Date | 06 June 2002 |
| Docket Number | No. 01-1021.,01-1021. |
| Citation | 349 Ark. 205,82 S.W.3d 806 |
| Parties | ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Joyce COX. |
| Court | Arkansas Supreme Court |
Dana McClain, Little Rock, for appellant.
Stacey Bryant Ryall, PA., by: Stacey D. Ryall, Jonesboro, for appellee.
The Arkansas Department of Human Services (DHS) appeals orders of the Greene County Probate Court, a temporary guardianship order entered May 16, 2001, a permanent guardianship order entered May 21, 2001, and a September 19, 2001, order. DHS asserts that this case is controlled by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified at Ark.Code Ann. §§ 9-19-101-9-19-401 (Repl.2002), and that the probate court lacked jurisdiction under the Uniform Act to decide the issue of guardianship, or in the alternative, abused its discretion in failing to decline jurisdiction by reason of conduct under Ark.Code Ann. § 9-19-208. DHS also asserts that the probate court erred when it failed to give full faith and credit to an order from a Florida court to pick up the child.
We hold that the probate court had jurisdiction to consider the guardianship petition. We further hold that the Florida ex parte order at issue was void ab initio and invalid on its face. We also hold that even had the Florida ex parte order been valid, it was not entitled to full faith and credit in that it was never registered or enforced in this state as required under the UCCJEA, and that DHS was without authority to take any action whatever on the order. The decision of the probate court is affirmed.
This case involves the seizure of a child by DHS without a warrant or order of any court of this state. DHS does not assert that the child was in immediate danger such that they were required to take custody without a warrant or order as allowed under the statutes of this state. In fact, DHS denies taking the child into DHS custody, but rather asserts that the child was taken and held by them in Arkansas under the authority of an ex parte order of the State of Florida. DHS relies on an ex parte "Order to Take-Into-Custody" issued by the Circuit Court of Osceloa County Florida, which was directed to "All and Singular the Sheriff's of the State of Florida or Other Law Enforcement Agencies." The Arkansas Department of Human Services was not mentioned in this order.
DHS does not assert that this ex parte order from Florida was registered or that enforcement of the order was sought in the courts of this state under the UCCJEA. No notice was provided to Joyce Cox, who was caring for the child. No warrant to take custody was issued by a court of this state under the UCCJEA. DHS simply went to the house and took the child.
According to the testimony of Suzanne Henry, a supervisor for the Department of Human Services, Children and Family Services in Greene County, on May 15 she received a call from her superiors at DHS directing her to "pick up a child" and "hold" her for the State of Florida. Ms. Henry expressed concern about taking custody of the child without a court order, and eventually, the Florida ex parte order was faxed to Ms. Henry. Ms. Henry then forwarded the Florida order to Lisa McGee, Deputy Counsel at the Office of Chief Counsel at DHS, for confirmation. According to Ms. Henry's testimony, she received a call back and was told to "honor" the Florida order and to "pick-up the child and hold until Florida could pick the child up." According to DETS's pleadings, Lisa McGee directly told Ms. Henry to "take custody" of the child. Ms. Henry also testified that when she was speaking with authorities in Florida they told her that if DHS would pick up the child they "would be on the plane immediately."
Ms. Henry then proceeded to the Cox home on May 15 where Cheyenne was in the physical custody of her paternal grandmother, Joyce Cox. Ms. Henry testified that no notice had been provided to Ms. Cox, and that they simply took the child. Ms. Henry also testified that Ms. Henry further testified that on May 16 she informed authorities in Florida that they had Cheyenne.
On May 16, Ms. Cox filed a Petition to Appoint Guardian of Minor Child, which was considered ex parte and resulted in an Ex Parte Temporary Order of Guardianship granted that day. On May 17, the Temporary Order of Guardianship was faxed to Christine Berger, counsel for DHS. By this order, Ms. Berger and DHS were informed that DHS was ordered "to return the incapacitated person to the physical custody of the petitioner, Joyce Cox, immediately and without delay." DHS did not return the child to Ms. Cox. Ms. Berger and DHS were further given notice in this order that a temporary hearing was to be held the next day at 9:30 a.m.
DHS decided not to comply with the probate court's order and contacted Florida. They delivered Cheyenne to Florida authorities at the Memphis airport on the morning of the hearing such that by the time of the hearing, Cheyenne was out of the State of Arkansas. DHS asserts this case involves a race to the courthouse and because the Florida ex parte order was issued on May 15, and the Arkansas order on May 16, that they decided to follow the earlier Florida ex parte order.
DHS asserts further that what occurred in this case is simply a matter for the Florida courts because it arose when a pregnant woman fled Florida to Arkansas to give birth here for the express purpose of depriving Florida of jurisdiction of her child because Florida was about to terminate her parental rights to her other five children in Florida. DHS also asserts that Florida has a pending dependency-neglect proceeding on the family in Florida and has worked with this family since the late 1990s. Therefore, DHS asserts, Florida has interests that should be protected, and Cheyenne can be best served by the Florida courts.
We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.
DHS asserts that the probate court lacked jurisdiction to entertain the guardianship petition because Florida already had jurisdiction of the Pruitt family. The Florida circuit court had dependency-neglect proceedings pending before it with respect to each of Cheyenne's five siblings who resided in Florida. DHS also argues that proceedings specifically concerning Cheyenne had already been commenced in Florida prior to May 16, 2001, when the probate court issued its order, and that the probate court should have, therefore, deferred to Florida. DHS argues that deference to Florida was especially proper in this case where Florida was already involved with the family, and where the mother only came to Arkansas to give birth to Cheyenne in order to deprive Florida of jurisdiction. The May 15, 2001, ex parte "Order to Take-Into-Custody" issued by the Florida circuit court shows Florida was attempting to exert some manner of jurisdiction over Cheyenne prior to May 16, 2001, when the probate court issued its Ex Parte Temporary Order of Guardianship.
DHS asserts that under the UCCJEA, Florida had jurisdiction. We also note that the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A (2002), is applicable and where conflicts exist is preemptive. Perez v. Tanner, 332 Ark. 356, 965 S.W.2d 90 (1998). This was also DHS's argument in its motion to dismiss filed in probate court, and the issue of the validity of the Florida ex parte order was litigated below. Cox specifically asserted the Florida ex parte order was void ab initio. As DHS correctly states in its brief, the issue in this case is whether the probate court had jurisdiction to decide custody. The dissent confuses the issue by mistakenly analyzing this case under principles of significant connection that were modified by adoption of the UCCJEA.1
The UCCJEA as codified in Arkansas is comprised of three subchapters. Subchapter one provides general provisions, including definitions. Subchapter two sets out jurisdiction and the method whereby the courts of this state issue a child-custody determination order. Section 9-19-201 provides the criteria used to determine whether a state has jurisdiction to make an "initial child-custody determination." "Initial determination" means the first child-custody determination. Ark.Code Ann. § 9-19-102(8) (Repl.2002). Under § 9-19-201(a) as applied to the facts of this case, a court of this state has jurisdiction to make an initial child-custody determination if it is the home state of the child. The home state of a child of less than six months of age means the state in which the child lived from birth with a parent or person acting as a parent. Ark.Code Ann. § 9-19-102(7). See similarly, 28 U.S.C. 1738A(a)(4) under the PKPA. DHS agrees that under this definition, Arkansas is the home state, but argues that this Court must look at more than just whether Arkansas is the "home state." DHS also argues conversely that Florida had jurisdiction and under the PKPA, once jurisdiction was had in Florida, the Arkansas court was without jurisdiction to act, because, as stated, that act is preemptive. As noted, the definition of "home state" is the same in PKPA as in the UCCJEA. Contrary to what DHS argues, Florida never had jurisdiction under the PKPA or under the UCCJEA to make a child-custody determination and, therefore, there was no jurisdiction in Florida on May 16, 2001, when the probate court acted.
DHS argues further and separately that a proceeding could not be commenced here because a...
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