Lunsford v. Engle

CourtCourt of Appeal of Florida (US)
Citation312 So.3d 904
Docket NumberNo. 4D19-774,4D19-774
Parties Kelly Kay LUNSFORD, Appellant, v. Kara ENGLE and Jake Phillips, Appellees.
Decision Date20 January 2021

312 So.3d 904

Kelly Kay LUNSFORD, Appellant,
Kara ENGLE and Jake Phillips, Appellees.

No. 4D19-774

District Court of Appeal of Florida, Fourth District.

[January 20, 2021]

John F. Schutz of John F. Schutz, PL, Palm Beach Gardens, for appellant.

No appearance for appellees.

Eddie Stephens and Caryn A. Stevens of Ward, Damon, Posner, Pheterson & Bleau, West Palm Beach, for interested parties Trent Engle and Kimberly Engle.


Gerber, J.

By order, we granted the interested parties’ motion to vacate and/or recall our mandate issued February 7, 2020. We further ordered a new briefing schedule and granted the interested parties’ motions to supplement the record and the appellant's motion to supplement the record. Based on our review of the now-complete record and the parties’ subsequent briefs, we vacate our opinion issued January 22, 2020, and substitute the following opinion in its place.

A child's maternal grandmother appeals from a Florida court's orders: (1) dismissing the maternal grandmother's petition for temporary legal custody of the child; and (2) denying the maternal grandmother's motion to disregard an Oregon court's orders based on the Oregon court's alleged lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The Florida court reasoned it lacked jurisdiction over the maternal grandmother's petition and motion because the Oregon court already had exercised jurisdiction over the child.

On appeal, the maternal 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 maternal grandmother's due process rights when it

312 So.3d 907

communicated with the Oregon court during a jurisdiction hearing without allowing the maternal grandmother's counsel to participate.

The appellees, who are the child's biological parents, have not responded in this appeal. The interested parties, who are the child's maternal grandfather and step-grandmother and adoptive parents, respond, in pertinent part: (1) the Florida court properly dismissed the maternal grandmother's petition for lack of jurisdiction, as the Oregon court already had jurisdiction over this matter under the UCCJEA, and such jurisdiction continued in Oregon through and including the final judgment of adoption; and (2) the Oregon court's final judgment of adoption became valid and binding on all persons after the expiration of one year from its entry, and such adoption's validity may not be questioned for any reason thereafter under Oregon law.

We agree with the interested parties’ arguments. Therefore, we affirm the Florida court's orders dismissing the maternal grandmother's petition and denying the maternal grandmother's motion to disregard the Oregon court's orders. Although we agree with the maternal grandmother that the Florida court erred in communicating with the Oregon court during the jurisdiction hearing without allowing her counsel to participate, we conclude such error was harmless under the facts of this case.

Procedural History

In December 2014, the child was born in Palm Beach County. The child resided with the biological mother and the maternal grandmother at the maternal grandmother's home in Palm Beach County.

In February 2015, when the child was two months old, the biological mother and the biological father left Florida with the child. By March 2015, the mother and father had 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 a rollover accident.

The Oregon Department of Human Services ("Oregon DHS") immediately sheltered the child and petitioned the Oregon court to exercise temporary emergency jurisdiction over the child. The Oregon circuit court granted the petition and placed the child in Oregon DHS's temporary custody. The biological mother returned to Florida without the child or the father, and resumed living at the maternal grandmother's home.

In May 2015, the Oregon court entered orders finding the child was within the Oregon court's jurisdiction, both biological parents had admitted to Oregon DHS's petitions, the Oregon court had placed the child in Oregon DHS's temporary custody, and both biological parents had acquiesced to the Oregon court's continuing jurisdiction over the child. Later that month, the Oregon court conducted a disposition hearing. The Oregon court entered an order noting the biological mother had gone back to Florida to live with the maternal grandmother, neither biological parent had met the conditions to return the child for in-home placement, and the child's best interests required the child remain in Oregon DHS's custody for care, placement and supervision.

In the summer of 2015, Oregon DHS began conducting home studies to place the child with relatives. Oregon DHS determined the maternal grandmother would not be an appropriate placement for the child because the biological mother was living with the maternal grandmother. After that determination, the mother left Florida and rejoined the father. At some

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point, the mother and father reached Texas, where the father was arrested for another domestic violence incident against the mother.

In August 2015, Oregon DHS approved the interested parties as an appropriate foster care placement for the child, and transported the child from Oregon to Florida to live with the interested parties. By this time, the child was eight months old.

In November 2015, when the child was eleven months old, the maternal grandmother, through counsel, filed a verified petition for temporary custody with the Florida circuit court. In the petition, the maternal 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 [the] 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.

The maternal grandmother did not serve her petition upon Oregon DHS, which, at the time, remained the child's legal guardian and custodian.

In January and February 2016, after the child turned one year old, the Oregon court held permanency hearings to assess the biological parents’ compliance with the Oregon DHS case plans. Because the biological parents had made no progress to comply with the case plans, Oregon DHS modified the plan goal for the child from "reunification" to "adoption." Thereafter, Oregon DHS filed petitions with the Oregon court to terminate the biological parents’ parental rights.

Also in February 2016, the maternal grandmother, through counsel, filed with the Oregon court a motion for limited participation, seeking to pursue permanent guardianship of the minor child, or to be designated as the alternative temporary placement for the minor child, and also seeking visitation with the minor child. [Unlike Florida, Oregon provides a statutory right for grandparents to request visitation with the minor grandchild. OR. REV. STAT. § 419B.876 (2016).] The Oregon court denied the maternal grandmother's motion.

In March 2016, when the child was fifteen months old, the maternal grandmother filed with the Florida court a motion for judicial communication with the Oregon court pursuant to section 61.519, Florida Statutes (2015). The maternal grandmother's motion alleged she was seeking to argue that Florida, not Oregon, had initial custody jurisdiction. The Florida court granted the maternal grandmother's motion for judicial communication and scheduled a hearing with...

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