Matter of B.B.R.
| Decision Date | 02 November 1989 |
| Docket Number | No. 88-529.,88-529. |
| Parties | In the Matter of B.B.R. Appeal of M.R. |
| Court | D.C. Court of Appeals |
Stephen A. Fennell, with whom Frank B. Stilwell III, Washington, D.C., and Mary Woodson Poag, Dallas, Tex., were or the briefs, for Marita Rogers, appellant.
Steven M. Schneebaum, with whom Judith Bartnoff and Daniel M. Flores, Washington, D.C., were on the brief, for Alan and Kathy Platt, appellees.
Before STEADMAN, SCHWELB and FARRELL, Associate Judges.
The issue in this case is whether the courts of the District of Columbia or of California are to determine the future of a four-year-old boy born of a mother in California but who has resided since he was two days old with a married couple in the District, despite the California mother's repeated calls for his return to her. Couched in the language of the law, the issue we must decide is whether the District of Columbia courts have jurisdiction under a federal statute, the Parental Kidnapping Prevention Act of 1980 (the "PKPA" or the "Act"), 28 U.S.C. § 1738A (1982), to entertain a petition for adoption of a child in the physical custody of a D.C. couple when the natural mother has previously sought return of the child by initiating a proceeding for a custody determination in the courts of California. We hold that California has exclusive jurisdiction under the PKPA and accordingly reverse the trial court's grant of adoption.
The largely undisputed facts in this case have been set forth in no fewer than four published opinions.1 As pertinent to our disposition here, they may be summarized as follows. On June 14, 1985, Marita Rogers, a resident of California, gave birth to a boy at Sutter Memorial Hospital in Sacramento, California. She had previously spoken to her obstetrician about the possibility of placing the child for adoption, since she already had one child who was mentally retarded and required much attention. The obstetrician had thereupon been in contact with Alan and Kathy Platt, residents of the District. Within hours of delivery, Ms. Rogers signed a "release," in which she agreed to allow the hospital to release her child to the Platts, while expressly retaining all parental rights.2 The Platts arrived in California on June 15. Mr. Platt added his signature to the release form that Ms. Rogers had signed, acknowledging his understanding of its terms.3 Furthermore, Ms. Rogers' obstetrician and a hospital social worker carefully explained the terms of the release to the Platts. That day, the hospital released the child to them and the next day the Platts and the child flew back to the District, where they have lived together ever since.
On June 18, 1985, Ms. Rogers informed her obstetrician that she had changed her mind and now wanted her child back. The obstetrician then telephoned the Platts and told them that Ms. Rogers wanted her child back. Ms. Rogers also told the hospital social worker that she had changed her mind and successfully prevailed on a lawyer with whom she had had dealings to telephone the Platts to communicate the same information to them. The Platts did not comply with Ms. Rogers' attempts to have her child returned.4
On November 21, 1985, Ms. Rogers commenced a proceeding in the Superior Court of California in Sacramento to obtain custody of her child.5 The Platts followed suit the next day by filing a petition for appointment of a guardian in the Superior Court of the District of Columbia.6
On March 21, 1986, the D.C. Superior Court concluded that the District of Columbia was the child's "home State" for purposes of the federal Parental Kidnapping Prevention Act and that the D.C. Superior Court therefore had exclusive jurisdiction to entertain the Platts' petition. Platt I, supra note 1, 114 W.L.R. at 808. On May 22, 1986, the California Superior Court concluded that California, not the District of Columbia, was the child's "home State" and that exclusive jurisdiction under the PKPA was therefore in the California courts. The California court awarded temporary custody to appellant on May 22, 1986. Although adopting different reasoning 7 the California Court of Appeal affirmed the custody decision on March 29, 1988. Platt II, supra note 1. Meanwhile, appellant had filed a counterclaim on November 10, 1987 to enforce the California decree in the D.C. Superior Court, as well as a counterclaim for custody and a petition for a writ of habeas corpus.
After a delay caused by abortive litigation in the federal courts here,8 the Platts' adoption petition went on to trial in the D.C. Superior Court on April 6-12, 1988. The court granted the Platts' adoption petition and denied enforcement of Ms. Rogers' counterclaims. The court pretermitted the question of whether the Platts had wrongfully retained custody of the child, reasoning that although Ms. Rogers had sought return of her child and the Platts' right to custody was limited from the start by the clear language of the release form, it was now in the child's best interests to remain with his new family, the Platts.9 It is from this order that the current appeal is taken.
The controlling statute here is the Parental Kidnapping Prevention Act,10 enacted by Congress in 1980 to deal with the recurring problem of interstate controversies over child custody decisions. The Act establishes criteria to determine which state shall have jurisdiction over custody disputes where more than one state can assert an interest in the matter. Thus, the Act establishes the conditions under which one state must give full faith and credit to the custody decrees of another state.11 In addition, the Act establishes the conditions under which a state must refrain from entertaining a custody proceeding when a proceeding in the same matter is pending in another state:
A court of a State shall not exercise jurisdiction in any proceeding for a custody, determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.
28 U.S.C. § 1738A(g) (1982) "").12 It is this subsection that controls the dispute before us. If at the time the first proceeding was filed here in the District, there was already pending in California a proceeding where the court was "exercising jurisdiction consistently with the provisions of this section," then the District was precluded from proceeding with any action here.13
A court exercises jurisdiction "consistently with the provisions" of the Act if the court has jurisdiction under the law of the state in which it sits, id. § 1738A(c)(1), and if one of several conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships. . . .
Id. § 1738A(c)(2).
The Act defines "home State" as:
[Clause 1:] the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent for at least six consecutive months, and [Clause 2:] in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period[.]
Id. § 1738A(b)(4).
Thus, under the structure of the Act, if any state qualifies as the "home State," that state has exclusive jurisdiction over custody matters. Otherwise, a state that meets the qualifications of subsection (B) — in particular, the "significant connection" requirement — has exclusive jurisdiction as long as the litigation before it commenced prior to litigation in any other state also meeting the requirements of subsection (B).
We do not think14 the District of Columbia could be found to be the child's "home State" in November 1985, when the actions were commenced in California and D.C.15 The plain language of the definition of "home State" does not allow for this conclusion. The child did not "live from birth" in the District. He lived in the District only from two days after birth. Hence, the District of Columbia cannot be seen as the "home State."16 Whether California was the "home State" is more problematic. Indeed, the California Court of Appeal found that California was not the "home State." Platt II, supra note 1, 199 Cal.App.3d at 1214, 245 Cal.Rptr. at 538. We need not reach that issue, however, since we conclude, as did the California Court of Appeal, that in any event California met the requirements of subsection (B), to which we now turn.
The PKPA contemplates the possibility that a child may have no "home State," subs. (c)(2)(B)(i),17 and provides in this situation for an alternative basis on which a court may assert jurisdiction. Subsection (c)(2)(B)(ii) allows for an assertion of jurisdiction when a court has jurisdiction under its state's law and when such an exercise of jurisdiction is
in the best interest of the child because (I) the child and his parents, or the child and at...
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