Regalado v. Mathieson, 23026
| Citation | 2004 SD 87,684 NW 2d 67 |
| Decision Date | 30 June 2004 |
| Docket Number | No. 23026,23026 |
| Parties | MELANIE REGALADO, Plaintiff and Appellee, v. ARDITH JEAN FERGUSON MATHIESON, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
STANLEY E. WHITING, Winner, South Dakota, Attorney for plaintiff and appellee.
NEIL CARSRUD, Dakota Plains Legal Services, Mission, South Dakota, Attorney for defendant and appellant.
SANDY J. STEFFEN of Johnson, Eklund, Nicholson, Peterson & Fox Gregory, South Dakota, Attorneys for appellees Minor Children.
[¶ 1.] Mother appeals from a trial court's dismissal of an action initiated by Grandmother pursuant to SDCL 25-5-29 et seq. seeking custody of Mother's two children, T.H.M and M.M.M. On appeal, Mother argues the trial court abused its discretion when it dismissed the action based on its finding South Dakota was an inconvenient forum. Mother also contends the trial court committed reversible error when it declined to communicate with a California court in which Grandmother had commenced a separate guardianship proceeding. Finally, Mother renews her previous argument that SDCL 25-5-29 et seq. is not the proper statutory scheme under which a non-parent may initiate a custody proceeding based upon allegations of abuse and neglect. For the reasons articulated herein, we affirm the trial court's order dismissing the action.
[¶ 2.] This appeal marks the third time these parties have been before this Court. In Matter of the Guardianship and Conservatorship for T.H.M. and M.M.M., 2002 SD 13, 640 NW2d 68 (T.H.M. I), we reversed a trial court's termination of Mother's custodial rights based upon its determination that the children were abused and neglected. In the opinion, a three-justice majority held that Grandmother could not use the South Dakota Guardianship and Conservatorship Act, set forth in SDCL ch. 29A-5, to gain custody of the children based upon allegations of abuse and neglect. Id. ¶¶9-10. Rather, the majority believed that SDCL ch. 26-7A and 26-8A were the proper statutes under which to adjudicate custody based on allegations of abuse and neglect. Id. ¶10. We remanded the case and directed the trial court to:
[O]rder DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending an adjudication of the abuse and neglect proceedings.
[¶ 3.] On remand, DSS failed to conduct an abuse and neglect investigation as to T.H.M and M.M.M., and, as a result, the state's attorney stated that she had no basis for filing an abuse and neglect proceeding.1 The trial court took the matter under consideration. In the meantime, Grandmother initiated the action underlying the present appeal seeking custody of the children under SDCL 25-5-29 and 25-5-30, statutes enacted after this Court's decision in T.H.M I, which permit a non-parent to pursue custody under certain circumstances. The trial court then dismissed the original guardianship proceedings and allowed Grandmother to proceed under SDCL 25-5-29 et seq. We summarily affirmed the trial court's dismissal of the original guardianship proceedings in Matter of the Guardianship and Conservatorship for T.H.M. and M.M.M., __ NW2d __ (Table) (2004) (T.H.M. II).
[¶ 4.] Although she initiated the second action, Grandmother subsequently moved for a dismissal under SDCL 26-5A-7 on the grounds South Dakota was an inconvenient forum to make a custody determination. After conducting a hearing, the trial court dismissed the action and yielded jurisdiction to California under the Uniform Child Custody Jurisdiction Act (UCCJA), codified by South Dakota at SDCL ch. 26-5A. Mother now appeals raising three issues for our review:
[¶ 5.] We employ the abuse of discretion standard when reviewing a trial court's decision to decline jurisdiction as an inconvenient forum under the UCCJA. Ford v. Ford, 2002 SD 147, ¶7, 655 NW2d 85, 86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶16, 591 NW2d 798, 804 (citation omitted). Questions of law, such as statutory construction, are reviewed de novo with no deference afforded the trial court's decision. T.H.M. I, 2002 SD 13, ¶7, 640 NW2d at 70-71 (citation omitted). Findings of fact, however, will not be overturned unless they are clearly erroneous. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25. "Clear error is shown only when, after a review of all the evidence, `we are left with a definite and firm conviction that a mistake has been made.'" Id.
[¶ 6.] 1. Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.
[¶ 7.] After conducting a hearing with the attorneys for Mother, Grandmother, and the children, the trial court granted Grandmother's motion to dismiss this guardianship action based upon its finding that South Dakota was an inconvenient forum in which to make a custody determination. Mother believes the trial court abused its discretion in making this determination, and she urges this Court to reverse the trial court and reinstate the custody proceedings in South Dakota. Following a careful review of the lengthy proceedings underlying this appeal, however, we believe the trial court reasonably exercised its discretion in determining South Dakota to be an inconvenient forum for purposes of the UCCJA under the particular facts of this case.
[¶ 8.] Under both the UCCJA and the Parental Kidnapping Prevention Act (PKPA), "the state granting the original custody decree maintains exclusive continuing jurisdiction to modify custody decrees so long as the child or one of the contestants remains in that state." Fuerstenberg, 1999 SD 35, ¶19, 591 NW2d at 805; SDCL 26-5A-14; 28 USC § 1738A(d). Here, a South Dakota court made the initial custody determination, and Mother continues to reside in this state; therefore, the trial court clearly had jurisdiction to entertain Grandmother's action to seek custody of the children. Under South Dakota's codified version of the UCCJA, however, a court may decline to exercise jurisdiction "if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum." SDCL 26-5A-7. In making this decision, a trial may consider the following nonexclusive factors:
Id. "Ultimately, the question comes down to whether `it is in the interest of the child that another state assume jurisdiction.'" Fuerstenberg, 1999 SD 35, ¶20, 591 NW2d at 805 (quoting SDCL 26-5A-7).
[¶ 9.] Here, the trial court determined the factors set out in SDCL 26-5A-7 militated against South Dakota exercising jurisdiction. First, the court noted the children have been living with Grandmother in California for over four years. The trial court further determined the children had closer connections with California and that evidence concerning the children's current or future well-being was more readily available in that state. Central to the court's analysis were the findings of fact and conclusions of law entered after the initial custody proceedings. These findings detailed the children's involvement in numerous activities in California including basketball, soccer, and dance, along with their participation in church, youth groups and Sunday school. Additionally, the court found the children were involved in both individual and group counseling in California. Perhaps most importantly, the court found that the children had only received proper dental and medical care since their relocation to California, a significant finding given the necessity of T.H.M.'s seeing a cardiac specialist for a heart valve problem. These findings were based to a great extent upon the observation of numerous witnesses who appeared in person or by deposition at the initial custody proceedings.
[¶ 10.] Under the particular circumstances of this case, the trial court's findings of fact appear to be supported by the record and all reasonable inferences drawn therefrom. In light of these findings, the trial court determined a California court would be better suited to make a custody determination concerning T.H.M. and M.M.M. We afford the trial court wide latitude in making such determinations, whether it chooses to exercise or decline jurisdiction. See Ford, 2002 SD 147, ¶11, 655 NW2d at 87; Fuerstenberg, 1999 SD 35, ¶21, 591 NW2d at 806. Our review of the record before us strongly suggests the trial court did not abuse its discretion in deferring to the California court's jurisdiction. Current evidence concerning the children's care, protection, training, and personal relationships will be more readily available in that jurisdiction where the children have resided for well over four years. While we acknowledge Mother may experience some hardship in defending a custody proceeding in California, the interests of T.H.M. and M.M.M. must be considered paramount. Accordingly, we find no abuse of discretion in this case.
[¶ 11.] 2. Whether the trial court committed reversible error...
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