Dep't of Human Servs. v. T.F. (In re M.L.F.), A165690

• Decision Date: 13 June 2018
• Docket Number: A165690
• Citation: 292 Or.App. 356,425 P.3d 480
• Parties: In the Matter of M.L.F., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. T.F., Appellant.
• Court: Oregon Court of Appeals

292 Or.App. 356

425 P.3d 480

In the Matter of M.L.F., a Child.

DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,

v.T.F., Appellant.

A165690

Court of Appeals of Oregon.

Submitted January 29, 2018.

June 13, 2018

Shannon Storey, Chief Defender, Juvenile Appellate Section, and Shannon Flowers, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and

Inge D. Wells, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

ORTEGA, P.J.

Mother appeals a judgment asserting dependency jurisdiction over her child, M, challenging the juvenile court's subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).¹ She argues that Oregon was not M's "home state" under the UCCJEA, and that no other provision of the UCCJEA granted subject matter jurisdiction to an Oregon court. The Department of Human Services (DHS) concedes that Oregon was not M's home state as that term is defined by the UCCJEA. Nevertheless, DHS claims that the juvenile court had "temporary emergency jurisdiction" under ORS 109.751 and, because nothing has happened in the meantime to alter that status, Oregon courts have subject matter jurisdiction in this matter. We conclude that there is no indication that the trial court took temporary emergency jurisdiction and reverse.

It is undisputed that M's father brought M to Oregon from Louisiana in January 2017. DHS petitioned the court for dependency jurisdiction in April 2017, alleging that mother's substance abuse interfered with her ability to safely parent M, that mother failed to meet M's basic needs, and that she exposed M to domestic violence and to unsafe people and caregivers.² At the jurisdictional hearing, mother challenged the court's subject matter jurisdiction under the UCCJEA, asking the court to dismiss the petition. In particular, mother noted that the dependency petition had been filed less than six months after father moved to Oregon with M and that, under the UCCJEA, Oregon was not the "home state" for purposes of jurisdiction. M's attorney and father's attorney argued that the jurisdictional challenge was either untimely or had been waived, and DHS asserted that "jurisdiction is proper pursuant to [ORS] 419B.803 [ (1) ](b), that there is no timeframe under which [the juvenile] court needs to consider when a child is subject to a petition under 419B.100." DHS explained that, in its view, under ORS 419B.803(1)(b), when the court is considering whether to take jurisdiction under ORS 419B.100, "all that you have to meet for jurisdiction is *** that the child is under [the] age of 12, and the subject of a petition filed pursuant to 419B.100." Mother disagreed, arguing that UCCJEA subject matter jurisdiction can be raised at any time and that "UCCJEA jurisdiction is more limited" than jurisdiction under ORS 419B.100.

The court denied mother's motion without explanation. Mother then admitted to the allegation that her substance abuse interfered with her ability to safely parent M. The rest of the allegations were dismissed. Mother appeals the jurisdictional judgment that followed, reprising her argument that the juvenile court lacked subject matter jurisdiction under the UCCJEA.

The UCCJEA's general jurisdictional provision provides:

"(1) Except as otherwise provided in ORS 109.751, a court of this state has jurisdiction to make an initial child custody determination only if:

"(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

"(b) A court of another state does not have jurisdiction under subsection (1)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under ORS 109.761 or 109.764, and:

"(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

"(B) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;"(c) All courts having jurisdiction under subsection (1) (a) or (b) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under ORS 109.761 or 109.764 ; or

"(d) No court of any other state would have jurisdiction under the criteria specified in subsection (1)(a), (b) or (c) of this section.

"(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

"(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."

ORS 109.741.³ "Home state" is defined in the UCCJEA as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." ORS 109.704(7).

DHS concedes that, at the time the dependency petition was filed, Oregon was not M's home state. We agree with that concession—there is nothing in the record that demonstrates that, at the time the dependency petition was filed, any of the provisions of ORS 109.741(1) provided subject matter jurisdiction in this case. However, DHS now asserts that the juvenile court had subject matter jurisdiction under another provision of the UCCJEA—i.e. , ORS 109.751(1), which provides temporary emergency jurisdiction "if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."

We recently addressed temporary emergency jurisdiction in State v. L. P. L. O. , 280 Or. App. 292, 306, 381 P.3d 846 (2016), explaining that "the plain text of ORS 109.751(1) provides that a court can take temporary emergency jurisdiction if the child is in the state and is in immediate need of the court's protection from mistreatment or abuse." "[T]he proper focus for courts is whether the child will be at immediate risk of harm upon return to the parent." Id. at 308, 381 P.3d 846. Temporary emergency jurisdiction is an "extraordinary jurisdiction reserved for extraordinary circumstances." Uniform Child Custody Jurisdiction and Enforcement Act § 204 comment, 9 ULA 649, 677 (1997).

Here, there is nothing in the record to indicate that the parties asked the court to take temporary emergency jurisdiction, nor is there any indication that that is the reason that the juvenile court concluded that it had subject matter jurisdiction to act. Rather, the arguments before the juvenile court indicated that the parties urged the court to dismiss mother's motion based on concepts of timeliness, waiver, or, at least to some extent, that the UCCJEA's jurisdictional provisions did not control.

DHS acknowledges that the parties did not explicitly address UCCJEA temporary emergency jurisdiction below and that the juvenile court offered no explanation for its ruling. Accordingly, DHS suggests that, if we are unable to determine whether the juvenile court had subject matter jurisdiction under the temporary emergency provision on the existing record, we remand for a hearing on whether M was at immediate risk of harm at the time the petition was filed.⁴

In the past, we have vacated and remanded a judgment for the juvenile court to make factual findings necessary to determine whether jurisdiction exists under the UCCJEA. For example, in Dept. of Human Services v. R. M. S. , 280 Or. App. 807, 810, 383 P.3d 417 (2016), the juvenile court had determined...