In re Interest of A.A.
| Decision Date | 14 August 2015 |
| Docket Number | 112,133,112,154.,112,134 |
| Citation | 354 P.3d 1205,51 Kan.App.2d 794 |
| Parties | In the Interest of A.A. (D.O.B. 4–21–06) and J.S.A. (D.O.B. 6–19–04). |
| Court | Kansas Court of Appeals |
Joseph W. Booth, of Booth Family Law, of Lenexa, and Melissa Kelley Schroeder, of The Kelly Law Firm, of Overland Park, for appellant natural mother.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee State of Kansas; Lori L. Gilmore, guardian ad litem, of Overland Park; and Randy McCalla, of Olathe, for appellee natural father.
Before HILL, P.J., GREEN and LEBEN, JJ.
The mother of two children appeals the child-custody orders entered by a Kansas district court on the ground that it lacked subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. (That act is frequently referred to in court opinions, including this one, by its somewhat unwieldy acronym, the UCCJEA.) The Kansas court entered orders in a child-in-need-of-care proceeding, but a Mississippi court had previously entered custody orders concerning these children in the divorce case between their parents.
We conclude that the Kansas court lacked subject-matter jurisdiction to enter the orders it did, which included a permanent transfer of custody of the children from mother to father. The Mississippi courts had continuing and exclusive jurisdiction in the case, and the Kansas court orders were neither necessary due to an emergency nor the result of a proper forum transfer under the UCCJEA. Accordingly, we reverse the district court's judgment, direct that the district court vacate its orders, and remand for further proceedings consistent with this opinion.
The issues before us require us to determine whether a Kansas court had subject-matter jurisdiction over child-custody matters that were already governed by a Mississippi court's divorce decree. We therefore will need to set out in some detail the proceedings that took place in each state. In addition, all of the parties recognize that a Kansas court could have authority to take some action in an emergency, so we must also set out the factual circumstances in sufficient detail that we can assess whether any emergency could have provided authority for the Kansas court's orders.
Mother and Father married in Kansas in June 2002, but they lived throughout the marriage in Mississippi, where they had two children: J.A., a son born in 2004, and A.A., a daughter born in 2006. In January 2007, Mother filed for divorce in Mississippi; she then moved with the children to Kansas.
Mother's divorce petition claimed that Father had treated her cruelly and inhumanely as a ground for the divorce, but the parties eventually stipulated to a divorce based on irreconcilable differences. The case was pending in the Chancery Court of Marshall County, Mississippi, for nearly 4 years before trial; during that time, several hearings were held regarding custody and visitation matters, and a guardian ad litem was appointed to represent the children's interests.
The Mississippi court held a 2–day trial in December 2010. The court then entered its “Judgment of Divorce,” granting Mother sole legal custody and physical custody of the children, subject only to supervised visitation with Father one weekend a month. The court designated Father's parents to supervise those visits.
The Mississippi court also provided a written opinion to accompany its judgment. The court found that spousal “abuse” had occurred during the marriage, noting that Father admitted he had hit Mother at least once and that there had been “many fights” between the parties. The court said that Mother had hit Father at least once too. Of greater concern was “evidence of sexual abuse” against J.A. The court cited testimony from Dr. Fred Steinberg about “extensive evaluations” he had done, leading Dr. Steinberg to conclude that J.A. had been sexually abused and to recommend that Father have only supervised visitations. Another expert, Dr. Frankie Preston, testified that Father was unlikely to have abused J.A., but the court said that “Dr. Preston failed to read Dr. Steinberg's report in its entirety and that these deficiencies compromise the reliability of Dr. Preston's evaluation.” (The court also favorably cited and relied upon Dr. Steinberg's report when it assessed the skills of Father as a parent.) The court said that “the children's behavior appeared to improve” while visitations with Father were initially suspended altogether.
In April 2011, a few months after the divorce action had ended, Mother filed a protection-from-abuse action on behalf of the children in Johnson County District Court. She sought an order preventing Father from contacting the children; in support, she alleged that Father had sexually abused the children in 2008 or 2009. The judge who heard her claim concluded that she had not satisfied her burden of proof and dismissed the petition; the judge also noted that the Mississippi court retained subject-matter jurisdiction over the children under the UCCJEA.
In October 2011, the State of Kansas filed child-in-need-of-care petitions in Johnson County District Court regarding the children. The petitions alleged that the children were in need of care because both parents had reported possible abuse of the children to social-service agencies. The State alleged that it would be against the children's welfare to remain in their homes. The factual allegations included reports that Father had sexually molested the children and that Mother was telling the children inappropriate things about Father and thereby harming them emotionally. The State's petition made several specific allegations: (1) that J.A. was acting out by simulating oral sex on other boys at day care, asking why boys had to put their genitals in their fathers' mouths, and expressing signs of posttraumatic stress disorder
; (2) that Mother had reported J.A. as suicidal; (3) that Mother had reported that A.A. had made allegations of sexual abuse against Father; (4) that A.A. had told a social worker that she did not like visiting Father but did not feel uncomfortable doing so; and (5) that Father had reported to police that the children said Mother would no longer let them see Father because he was a liar.
Mother filed a written response, asking that the State's petition be dismissed with respect to her. She made several references in her response to Mississippi court proceedings and orders, noted the evaluations done by Dr. Steinberg and Dr. Preston, and quoted the Mississippi court's statement that Dr. Preston's report had deficiencies that compromised its conclusions. Mother also provided other details about her claims that Father had abused the children.
The same day Mother filed that response, November 14, 2011, the case first came before the Johnson County District Court for a hearing. A pro tem judge (an attorney appointed to act as a judge in place of the assigned judge) presided. That judge determined that the court had subject-matter jurisdiction over the case, but neither the transcript nor the written order tells us what basis, if any, the judge had for that ruling. No mention was made of the UCCJEA. The court set a pretrial conference for January 24, 2012.
When the parties appeared for the pretrial conference, the parents indicated that they planned not to contest the State's allegation that the children were in need of care. The State's attorney noted that there was a Mississippi court action concerning the family and that the Mississippi court remained involved, though the attorney said he hoped the Mississippi case would be resolved soon so that the Kansas case could “start[ ] clean.”
At the next hearing, held February 23, 2012, both Mother and Father entered no-contest statements under which they agreed not to contest the State's factual claim that the children were in need of care, as defined in the Revised Kansas Code for Care of Children. See K.S.A. 2014 Supp. 38–2202(d). A child-in-need-of-care finding allows a court to take continuing acts to protect the children and provide for their welfare. The court accepted the no-contest statements, adjudicated the children in need of care, and set the case over until April to allow a case manager to familiarize himself with the case and make recommendations.
After this, the Kansas district court held a number of hearings. In general, for the next 18 months, the court and the parties postponed final resolution of the case. During this time, the court made some changes in visitation orders and allowed the case manager further time to assess matters and make recommendations—but the children were not removed from Mother's home. We will set out some of the more significant developments.
At a June 4, 2012, hearing, the court ordered that Father have unsupervised visits over Father's Day weekend. Several comments were made at that hearing about the Mississippi and Kansas court proceedings. The State's attorney said this was not “a typical Child [in] Need of Care case,” saying that the case
Mother's attorney responded to the case manager's recommendation that Father have unsupervised visitation, arguing that the Mississippi court had spent 4 years on the case and had ordered only supervised visitation for Father while the Kansas court had ordered unsupervised visitation after only a few months of involvement. Father's attorney then denigrated the Mississippi courts and expressed trust in the Kansas judge:
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