Sheila L. on Behalf of Ronald M.M. v. Ronald P.M.

Decision Date27 October 1995
Docket NumberNo. 22794,22794
Citation195 W.Va. 210,465 S.E.2d 210
CourtWest Virginia Supreme Court
PartiesSHEILA L., on Behalf of RONALD M.M., An Infant, Petitioner Below, Appellant, v. RONALD P.M., Respondent Below, Appellee.

2. Under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(d), a court may continue its jurisdiction if it has made a child custody determination consistent with the provisions of this section, if it maintains jurisdiction under its law, and if either the child or a contestant continues to reside in the state. A custody determination is defined in 28 U.S.C. § 1738A(b)(3) as a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications.

3. To assume jurisdiction in an emergency situation under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A(c)(1) and (2)(C), a state must have jurisdiction under its own law, the child must be physically present in the state, and the child must be either abandoned or in an emergency situation that necessitates action to protect the child being subjected to or threatened with mistreatment or abuse.

4. Unsubstantiated statements of a parent that a child is being subjected to or threatened with mistreatment or abuse, by themselves, cannot serve as a basis to invoke jurisdiction of a court to enter or modify a permanent custody award under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A(c). A parent is not precluded merely because of unsubstantiated statements from raising allegations of mistreatment or abuse in a court that has jurisdiction to enter or modify a permanent custody award on other grounds; nor is that court prevented from considering such unsubstantiated statements in entering a temporary order to protect a child from an emergency situation of abuse.

5. It is consistent with the intent of the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, that a court without jurisdiction on other grounds may invoke temporary emergency jurisdiction if its exercise of jurisdiction is consistent with the laws of the state where the court is located, the child is physically present in that state, and the child is in need of protection as a result of being subjected to or threatened with mistreatment or abuse. 28 U.S.C. § 1738A(c)(1) and (2)(C).

6. If emergency jurisdiction is based upon the unsubstantiated statements of a parent, additional evidence should be gathered as quickly as reasonably possible to either affirm or negate the allegations. Temporary jurisdiction should last only so long as the emergency exists or until a court that has jurisdiction to enter or modify a permanent custody award is apprised of the situation and accepts responsibility to ensure that the child is protected.

7. Emergency custody matters should be among those cases given priority by our court systems and should be resolved as quickly as is reasonably feasible.

George J. Cosenza, Parkersburg, for Appellant.

No appearance by Appellee.

CLECKLEY, Justice:

This appeal is brought by the petitioner below and appellant herein, Sheila L., 1 who requests this Court to reverse the order of the Circuit Court of Wetzel County filed on November 9, 1994, which dismissed her petition for custody of her son, Ronald M.M. The circuit court dismissed her petition after determining it is required to give full faith and credit to a final order entered on June 10, 1994, by the Court of Common Pleas of Jefferson County, Juvenile Division, for the State of Ohio. The final order issued in Ohio awarded legal custody of Ronald M.M. to his biological father, Ronald P.M., who was the respondent below and is the appellee herein. 2

I. FACTUAL AND PROCEDURAL BACKGROUND

This case represents yet another tragic situation of a child who has fallen prey to the increasing problems associated with interstate custody disputes. Ronald M.M. was born May 2, 1990, in Ohio. His parents were not married at the time of his birth, but they both resided in Ohio. In a home study dated June 9, 1994, conducted by Mariann Price, the Assistant Director of Admissions for the Florence Crittenton Home & Services located in Wheeling, West Virginia, the petitioner reported that she and the respondent lived together for approximately five months after Ronald M.M.'s birth.

On August 27, 1990, Sheila L. filed a parentage action against the respondent in the Ohio Court of Common Pleas of Jefferson County. The respondent denied paternity until genetic testing was performed. On February 11, 1992, the respondent acknowledged paternity. According to the petitioner's brief, it appears that Ronald M.M.'s custody was never at issue in the parentage action and a formal custody award was not made to either parent. Nevertheless, it is evident that Ronald M.M. continued to reside with the petitioner.

During the fall of 1992, the petitioner moved to West Virginia with Ronald M.M. and another son, Joshua, who was approximately four years old. The respondent is not the biological father of Joshua, and custody of Joshua is not in dispute.

According to Ms. Price's home study, problems arose when both Ronald M.M. and his half-brother Joshua were visiting the respondent at his house. During this visit, which appears to have occurred in May of 1993, the respondent's wife discovered the children "engaged in some sexual exploration." When the petitioner was informed of the behavior, she asked the children where they learned it. Ronald M.M. made a reference to the petitioner's stepfather, but Joshua denied the occurrence.

The petitioner took the appropriate action by terminating contact between her sons and her stepfather and contacted Northwood Health Systems to obtain counseling for the boys. By letter dated August 5, 1993, Sherry A. Croasmun, a child therapist, confirmed she saw Ronald M.M. on May 26, 1993; June 7, 1993; and June 16, 1993. She stated that Ronald M.M. "was not able to verbalize or confirm any information in regards to the alleged abuse ... [and she] recommend[ed] that a qualified evaluation be conducted to make a determination regarding the occurrence of abuse."

In late June of 1993, the petitioner took Ronald M.M. to Ohio for an intended one-week visit with the respondent. On July 1, 1993, Ronald P.M. requested and received an emergency ex parte order from the Ohio Court of Common Pleas granting him temporary custody of Ronald M.M. By affidavit, Ronald P.M. informed the Ohio Court of Common Pleas that he had learned Ronald M.M. was the victim of sexual molestation that directly involved Sheila L. or a member of her family. He further averred that he believed Ronald M.M. was in "eminent [sic ] danger of physical harm," was previously abused, and would "suffer physical injury and future potential sexual abuse" if a temporary order was not granted. In his petition, he also requested permanent custody of Ronald M.M. 3

On or about July 2 or 3, 1993, Sheila L. returned to Ohio to pick up Ronald M.M., but instead she was given the papers awarding temporary custody to Ronald P.M. Therefore, she was unable to bring Ronald M.M. back to West Virginia with her.

On July 19, 1993, Sheila L. filed a petition for custody of Ronald M.M. with the circuit court in West Virginia. On August 18, 1993, the circuit court entered an order which stated, inter alia, that in accordance with the Uniform Child Custody Jurisdiction Act, W.Va.Code, 48-10-1, et seq.,

"it is in the best interest of the child that a Court in the State of West Virginia assume jurisdiction because the child and his mother have a significant connection with this State and there is available in this State, substantial evidence concerning the child's present and future care, protection, training and personal relationships."

The order further requested the Ohio Court of Common Pleas to stay any further proceedings and permit the circuit court in West Virginia to adjudicate the issues in controversy.

By letter dated September 14, 1993, the Honorable Judge Samuel W. Kerr of the Court of Common Pleas responded to the action in West Virginia by stating that the Court of Common Pleas would retain continuing jurisdiction of the matter as a result of the original parentage action filed by Sheila L. Judge Kerr also wrote that under Ohio law the best interests of the child required continuing jurisdiction in Ohio and Ohio would proceed to determine the custody issue.

On October 8, 1993, an evidentiary hearing was held in Ohio. At that hearing, Sheila L. appeared, but she asserts that she did not consent to jurisdiction. As evidenced by the court referee's report dated May 23, 1994, testimony was taken from Sheila L. and Ronald P.M. at that hearing. The referee's report also indicates a second evidentiary hearing was held on May 6, 1994.

At the second hearing, the referee was advised that the State of West Virginia would not conduct a home study of Sheila L. in spite of a court order by Ohio and "proper documentation regarding the interstate compact on home studies outside the state of Ohio ... had all been completed and sent to proper authorities in West Virginia." Sheila L.'s counsel 4 apparently informed the referee that West Virginia no longer conducts interstate home studies in private matters such as this case. Due to the lack of a home study on Sheila L., her counsel requested the court grant a continuance until a home study could be completed. This request was denied, even though he stated that Ms. Price would...

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