M.P. v. G.R.H. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
M.P. AND T.P., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. : No. 91 EDA 2015
:
G.R.H., T.L.M. AND R.S. :
Appeal from the Order Dated December 18, 2014,
in the Court of Common Pleas of Pike County
Civil Division at No. 1850-2014-Civil
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 02, 2015
Appellants, M.P. and T.P., appeal from the order which dismissed their
petition for emergency custody of the minor children, J.H. and S.M.
(“the Children”), for lack of jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401-5482.
Upon careful review, we affirm.
We adopt the factual and procedural history of this case as set forth in
the trial court’s opinion.
This Appeal arises from a dispute regarding the
custody of two (2) minor children (“minor children”).
Defendants [G.R.H.] and [T.L.M.] are the biological
parents of the minor children. The State of
Tennessee undertook custody of the minor children,
placed them in foster care, and filed a Petition to
terminate the parental rights of [G.R.H.] and
[T.L.M.] in July, 2012. On or about April 12, 2013,
the minor children were placed in the custody and
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care of their paternal grandmother, Defendant
[R.S.]. A hearing on the termination of [G.R.H.]’s
and [T.L.M.]’s parental rights is scheduled for
February 9, 2015, in Tennessee.
After [R.S.] relocated to Pennsylvania, she
purportedly entered into a Stipulated Custody
Agreement (“Agreement”) with [M.P. and T.P.]
(“Appellants”), wherein Appellants would take
custody of the minor children. The Agreement was
never made an Order of this or any other Court.
[R.S.] delivered the minor children to Appellants at
their home in Pike County, Pennsylvania, on or about
January 12, 2014. [R.S.] removed the minor
children from Appellants’ care on or about
November 25, 2014, in contemplation of a written
revocation of the Agreement purportedly mailed to
Appellants.
Appellants filed an Emergency Complaint for
Custody of the minor children (“Complaint”) in the
Pike County Court of Common Pleas on December 8,
2014, requesting Primary Physical and Sole Legal
Custody of the minor children. An emergency
hearing was scheduled for December 17, 2014.
[R.S.] filed a Motion to Stay Emergency Custody
Order and Preliminary Objections to Plaintiffs’
Complaint on December 12, 2014. Appellants filed a
Motion for Order Requiring Attendance of the minor
children at the December 17 hearing. Appellants’
Motion was denied and the hearing on the Complaint
was held on December 17, 2014.
Following the December 17 hearing, this Court
entered an Order dismissing Appellants’ Complaint
for lack of jurisdiction, noting the initial custody
determination made by the courts in Tennessee and
the pending trial regarding termination of the
parental rights of [G.R.H.] and [T.L.M.]. Appellants
filed a Notice of Appeal on December 29, 2014.
Appellants’ Concise Statement of Matters Complained
of on Appeal makes the following assertions:
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1. That the trial court committed an error of
law in failing to communicate with the
court in Tennessee regarding
jurisdiction; and
2. That the trial court committed an error of
law in dismissing the matter for lack of
jurisdiction.
Trial court opinion, 1/27/15 at 1-3.
On appeal, appellants raise three issues:
1. Did the [t]rial [c]ourt err in proceeding with
the hearing when there was no proof of service
on either of the subject children’s natural
parents who were interested parties, and
should have had notice and the opportunity to
participate?
2. Did the [t]rial [c]ourt err in dismissing the case
for lack of jurisdiction?
3. Was the decision not to undertake jurisdiction
by the trial court void as to public policy?
Appellants’ brief at 5.
As a preliminary matter, appellants’ issues one and three are waived.
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a); see also Majorsky v. Douglas, 58
A.3d 1250, 1268 (Pa.Super. 2012).
We now turn to appellants’ remaining issue that the trial court erred in
determining that Pennsylvania lacked jurisdiction to consider their custody
petition. We are guided by the following standard of review:
A court’s decision to exercise or decline jurisdiction is
subject to an abuse of discretion standard of review
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and will not be disturbed absent an abuse of that
discretion. Under Pennsylvania law, an abuse of
discretion occurs when the court has overridden or
misapplied the law, when its judgment is manifestly
unreasonable, or when there is insufficient evidence
of record to support the court’s findings. An abuse
of discretion requires clear and convincing evidence
that the trial court misapplied the law or failed to
follow proper legal procedures.
Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super. 2005), quoting Lucas
v. Lucas, 882 A.2d 523, 527 (Pa.Super. 2005).
This case presents an unusual scenario. R.S., the paternal
grandmother, is a named defendant/appellee along with her son, G.R.H.,
who is the natural father of the Children, and T.L.M., the natural mother of
the Children. The Children were taken by Children Services in Tennessee
and placed in foster care based on a petition for dependency and neglect
filed on July 27, 2012. R.S. filed an intervening petition for custody in
Tennessee; and by order dated April 12, 2013, the Children were released
from dependency and placed into her care and custody. A hearing on the
petition to terminate parental rights of the natural parents was scheduled for
February 9, 2015, in Tennessee. Father, G.R.H., is contesting the
termination of his parental rights. (Notes of testimony, 12/17/14 at 3.)
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Meanwhile, plaintiffs/appellants, M.P and T.P., entered into a private
custody agreement called a Stipulated Custody Order (“Order”) with R.S.1
This Order is neither dated nor was it ever filed in the Court of Common
Pleas of Pike County. The Order refers to M.P and T.P. as “proposed
adoptive parents.” R.S. handed the Children over to M.P. and T.P. on
January 12, 2014, and on November 26, 2014, she unilaterally took the
Children back. According to the notes of testimony, R.S. picked up the
Children from daycare and told M.P. and T.P. she was revoking the Order.
(Notes of testimony, 12/17/14 at 10.)
Under the UCCJEA, the child’s home state is the preferred basis for
determining jurisdiction. McCoy v. Thresh, 862 A.2d 109, 113 (Pa.Super.
2004). The UCCJEA defines “home state” as:
The state in which a child lived with a parent or a
person acting as a parent for at least six consecutive
months immediately before the commencement of a
child custody proceeding. In the case of a child six
months of age or younger, the term means the state
in which the child lived from birth with any of the
persons mentioned. A period of temporary absence
of any of the mentioned persons is part of the
period.
23 Pa.C.S.A. § 5402. “Person acting as a parent” is defined as:
1
The testimony at the December 17, 2014 hearing revealed R.S. got in
touch with M.P. and T.P. through the Swan Program (Pennsylvania Statewide
Adoption and Permanency Network). There is no blood relation between the
R.S. and M.P. and T.P. or an official placement order. (Notes of testimony,
12/17/14 at 5.)
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[a] person, other than a parent, who:
(1) has physical custody of the child or has
had physical custody for a period of six
consecutive months, including any
temporary absence, within one year
immediately before the commencement
of a child custody proceeding; and
(2) has been awarded legal custody by a
court or claims a right to legal custody
under the laws of this Commonwealth.
23 Pa.C.S.A. § 5402.
Instantly, the trial court concluded the Children had resided in Pike
County from January 12, 2014 to November 25, 2014; thus, Pennsylvania
qualified as the home state of the Children. Additionally, appellants had
acted as parents for at least six consecutive months before they filed the
complaint. However, the trial court declined to assert jurisdiction over
appellants’ complaint because it found Tennessee to be a more appropriate
forum. The trial court provided three bases for its decision:
First, the Tennessee courts have yet to make a
determination regarding the parental rights of
[G.R.H.] and [T.L.M.], natural parents of the minor
children. A hearing on a Petition to Terminate
Parental Rights of the Natural Parents of the minor
children is scheduled to take place on February 9,
2015, in Tennessee. This Court believes that
assertion of jurisdiction over the custody of minor
children whose natural parents’ parental rights have
yet to be determined would be imprudent and
premature.
Second, Tennessee undertook custody of the
minor children and initially placed them in foster care
pursuant to a Petition for Dependency and Neglect.
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After [R.S.] filed an intervening Petition for Custody
in Tennessee, the minor children were released from
Dependency and placed in [R.S.]’s custody. [R.S.]
still retains custody of the minor children pursuant to
the April 12, 2013, Order of the Tennessee court.
Third, there is no Order of Court in Pike County
or anywhere in Pennsylvania which enforces the
purported private custody agreement between
Appellants and [R.S.].
Trial court opinion, 1/27/15 at 5.
In light of the ongoing litigation and custody order issued by the courts
in Tennessee, we agree with the trial court’s reasoning.2 We find no abuse
of discretion in dismissing appellants’ complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
2
We also note our agreement with the trial court’s discussion that there was
no basis for it to assert temporary emergency jurisdiction pursuant to
23 Pa.C.S.A. § 5424(a) because there were no allegations of abandonment,
mistreatment, or abuse made in this matter. While appellants’ complaint
was framed as an “Emergency Complaint for Custody,” it was, in fact, a
“Complaint for Custody.”
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