Lunsford v. Engle

• Decision Date: 22 January 2020
• Docket Number: No. 4D19-774,4D19-774
• Citation: 289 So.3d 6
• Parties: Kelly Kay LUNSFORD, Appellant, v. Kara ENGLE and Jake Phillips, Appellees.
• Court: Florida District Court of Appeals

289 So.3d 6

Kelly Kay LUNSFORD, Appellant,

v.Kara ENGLE and Jake Phillips, Appellees.

No. 4D19-774

District Court of Appeal of Florida, Fourth District.

[January 22, 2020]

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

No appearance for appellees.

Gerber, J.

A grandmother appeals from a Florida court's order dismissing her action seeking temporary custody of her grandson. The Florida court dismissed the action for lack of initial custody jurisdiction, on the ground that an Oregon court already had exercised jurisdiction over the child.

The 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 grandmother's due process rights when it communicated with the Oregon court during a jurisdiction hearing without allowing the grandmother to participate.

We agree with both of the grandmother's arguments. Therefore, we reverse and remand for the Florida court to: (1) communicate to the Oregon court that the Florida court will be exercising initial custody jurisdiction over the child; (2) allow the parties to participate in this communication if they so request; (3) disregard any orders which the Oregon court entered after the Oregon court had completed its exercise of temporary emergency jurisdiction; and (4) begin its exercise of initial custody jurisdiction with the grandmother's verified petition for temporary custody.

Procedural History

In December 2014, the child was born in Palm Beach County. The child resided with his mother and grandmother at the grandmother's home in Palm Beach County until the child was three months old.

In March 2015, when the child was three months old, the mother and father left Florida with the child. Ten days later, the mother and father 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 an accident. The Oregon Department of Human Services ("Oregon DHS") sheltered the child and petitioned the Oregon court to exercise temporary emergency jurisdiction over the child. The Oregon court granted the petition. The mother returned to Florida without the child and resumed living at the grandmother's home.

In August 2015, when the child was eight months old, Oregon DHS fostered the child with his step-grandmother in Palm Beach County. Oregon DHS did not foster the child with the grandmother, because the mother was living with the grandmother. The mother later left town again with the father.

In November 2015, when the child was eleven months old, the grandmother, through counsel, filed a verified petition for temporary custody with the Florida circuit court. In the petition, the 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 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 grandmother also filed a motion for judicial communication with the Oregon court pursuant to section 61.519, Florida Statutes (2015). The grandmother filed the motion for judicial communication to clarify that Florida had initial custody jurisdiction.

The Florida court granted the grandmother's motion for judicial communication and scheduled a hearing with the Oregon court.

In May 2016, when the child was seventeen months old, the jurisdiction hearing occurred between the Florida court and the Oregon court. The Florida court began the hearing by saying it had received from the Oregon attorney general's office a memo opining that the Oregon court should retain jurisdiction over the child. The following discussion then occurred:

[FLORIDA COURT] (to the grandmother's counsel): You want to go ahead and respond to [the Oregon attorney general's memo]?

[GRANDMOTHER'S COUNSEL]: I do. And, Judge, let me give you a copy of some documentation that would appear to be pertinent to that issue. Judge, this case was --

[OREGON COURT]: I'm sorry, just a minute. I'm sorry. I'm happy to have you all put on the record whatever objections you want, but this is a conferring call. It's not really a hearing. And, Judge, you agree with me that Oregon retains jurisdiction, and ... I have other matters that I have to deal with. I'm not sure that I'm prepared to hear any objection on that side. Is there any reason why we need to do that?

[FLORIDA COURT]: Not particularly. I mean, according to this memo, [the Department of Children and Families (DCF) ] in Florida is not taking the case. Just going through the memo, it's undisputed that Oregon has jurisdiction and [has the child] under their care ... that once the Court has temporary emergency jurisdiction, the Court and State become the home state of the Child so long as no custody proceeding in another state has been commenced and if determination, if that had been finalized. There is no action being taken by Florida. DCF has on multiple occasions declined to accept the case. Florida got this case through an [Interstate Compact on the Placement of Children] and is doing sort of a courtesy supervision. Oregon, again, has jurisdiction over the Child, but it's also in the best interest that the case be heard. It's moving forward in Oregon. The biological parents have apparently conceded to Oregon having jurisdiction. The biological parents, one of them was in custody or is currently in custody in Texas. The Mother has wandered around and has come back to Florida, and at some point moved back in with the [grandmother] .... And then [Oregon DHS] ... said, ["]You can't live with the mother if you're going to have the Child there; too; that's not in the Child's best interest.["] So - -

[OREGON COURT]: Well, that's not exactly accurate, but it's close enough at this point. If you need to refer to this memo - -

[FLORIDA COURT]: I think the memo outlines pretty clear that Oregon has jurisdiction over this case.

[OREGON COURT]: I agree with you. And ... I have a lot of people in the courtroom here, and I don't see a need to hear anymore because we have been working on this and been talking about it for a long time. So Oregon will retain jurisdiction, and I think that pretty much concludes the matter. Is that good with you?

[FLORIDA COURT]: Good with me.

[OREGON COURT]: All right. Thank you very much.

In August 2016, when the child was twenty months old, Oregon DHS requested the Oregon court to terminate the mother's parental rights. Oregon DHS argued the mother was an unfit parent due to severe mental health issues and her behavior, which manifested neglect and abandonment of the child. Oregon DHS also argued termination was in the child's best interests, and it had "identified two potential adoptive placements, both of whom are relatives to [the child]." The request did not identify the relatives who were the potential adoptive placements.

Our record contains no information regarding the outcome of Oregon DHS's request for the Oregon court to terminate the mother's parental rights, or any other information regarding the Oregon court's proceedings.

In June 2018, when the child was nearly three-and-a-half years old, the grandmother, through new counsel, filed with the Florida court a motion to disregard the Oregon court's orders based on the Oregon court's lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The motion argued, in pertinent part, "Any Orders entered in Oregon [were] void as Florida continued to have subject matter jurisdiction of all proceedings involving the ... child...."

The Florida court held a hearing on the grandmother's motion. At the hearing, the grandmother's new counsel raised five arguments: (1) lack of subject matter jurisdiction can be raised at any time; (2) under the UCCJEA, because the child was born in Florida and returned to Florida, Florida was the child's home state and therefore had initial custody jurisdiction; (3) also under the UCCJEA, the Oregon court had only temporary emergency jurisdiction; (4) the fact that DCF declined to accept supervision over the child, and that the parents had conceded to Oregon having jurisdiction, were irrelevant because parties cannot confer jurisdiction under the UCCJEA; and (5) under the UCCJEA, the Florida court and the Oregon court violated the grandmother's due process rights by not letting her original counsel be heard during the jurisdiction hearing two years earlier.

Despite the grandmother's arguments, the Florida court denied the grandmother's motion to disregard the Oregon court's orders based on the Oregon court's lack of jurisdiction. The Florida court then entered an order dismissing the grandmother's action for lack of jurisdiction.

This appeal followed. The grandmother raises two arguments: (1) under the UCCJEA, because Florida is the child's home state, and because the Oregon court had only temporary emergency jurisdiction, the Florida court erred in not exercising initial custody jurisdiction; and (2) the Florida court violated the grandmother's due process rights when it communicated with the Oregon court during the jurisdiction hearing without allowing the grandmother to participate.

Our Review

"We review de novo [a] trial court's ruling that it lacked subject matter jurisdiction under the UCCJEA." Barnes v. Barnes , 124 So. 3d 994, 995 (Fla. 4th DCA 2013). Applying de novo review, we agree with the grandmother's arguments. We address each...