KELLY LUNSFORD v. KARA ENGLE and JAKE PHILLIPS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KELLY KAY LUNSFORD,
Appellant,
v.
KARA ENGLE and JAKE PHILLIPS,
Appellees.
No. 4D19-774
[January 20, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 502015DR011293
NB.
John F. Schutz of John F. Schutz, PL, Palm Beach Gardens, for
appellant.
No appearance for appellees.
Eddie Stephens and Caryn A. Stevens of Ward, Damon, Posner,
Pheterson & Bleau, West Palm Beach, for interested parties Trent Engle
and Kimberly Engle.
ON INTERESTED PARTIES’
MOTION TO VACATE AND/OR RECALL MANDATE
GERBER, J.
By order, we granted the interested parties’ motion to vacate and/or
recall our mandate issued February 7, 2020. We further ordered a new
briefing schedule and granted the interested parties’ motions to
supplement the record and the appellant’s motion to supplement the
record. Based on our review of the now-complete record and the parties’
subsequent briefs, we vacate our opinion issued January 22, 2020, and
substitute the following opinion in its place.
A child’s maternal grandmother appeals from a Florida court’s orders:
(1) dismissing the maternal grandmother’s petition for temporary legal
custody of the child; and (2) denying the maternal grandmother’s motion
to disregard an Oregon court’s orders based on the Oregon court’s alleged
lack of jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”). The Florida court reasoned it lacked
jurisdiction over the maternal grandmother’s petition and motion because
the Oregon court already had exercised jurisdiction over the child.
On appeal, the maternal 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 maternal grandmother’s due process rights when it communicated
with the Oregon court during a jurisdiction hearing without allowing the
maternal grandmother’s counsel to participate.
The appellees, who are the child’s biological parents, have not
responded in this appeal. The interested parties, who are the child’s
maternal grandfather and step-grandmother and adoptive parents,
respond, in pertinent part: (1) the Florida court properly dismissed the
maternal grandmother’s petition for lack of jurisdiction, as the Oregon
court already had jurisdiction over this matter under the UCCJEA, and
such jurisdiction continued in Oregon through and including the final
judgment of adoption; and (2) the Oregon court’s final judgment of
adoption became valid and binding on all persons after the expiration of
one year from its entry, and such adoption’s validity may not be questioned
for any reason thereafter under Oregon law.
We agree with the interested parties’ arguments. Therefore, we affirm
the Florida court’s orders dismissing the maternal grandmother’s petition
and denying the maternal grandmother’s motion to disregard the Oregon
court’s orders. Although we agree with the maternal grandmother that the
Florida court erred in communicating with the Oregon court during the
jurisdiction hearing without allowing her counsel to participate, we
conclude such error was harmless under the facts of this case.
Procedural History
In December 2014, the child was born in Palm Beach County. The
child resided with the biological mother and the maternal grandmother at
the maternal grandmother’s home in Palm Beach County.
In February 2015, when the child was two months old, the biological
mother and the biological father left Florida with the child. By March
2015, the mother and father had reached Oregon with the child. At that
2
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 a rollover accident.
The Oregon Department of Human Services (“Oregon DHS”)
immediately sheltered the child and petitioned the Oregon court to exercise
temporary emergency jurisdiction over the child. The Oregon circuit court
granted the petition and placed the child in Oregon DHS’s temporary
custody. The biological mother returned to Florida without the child or
the father, and resumed living at the maternal grandmother’s home.
In May 2015, the Oregon court entered orders finding the child was
within the Oregon court’s jurisdiction, both biological parents had
admitted to Oregon DHS’s petitions, the Oregon court had placed the child
in Oregon DHS’s temporary custody, and both biological parents had
acquiesced to the Oregon court’s continuing jurisdiction over the child.
Later that month, the Oregon court conducted a disposition hearing. The
Oregon court entered an order noting the biological mother had gone back
to Florida to live with the maternal grandmother, neither biological parent
had met the conditions to return the child for in-home placement, and the
child’s best interests required the child remain in Oregon DHS’s custody
for care, placement and supervision.
In the summer of 2015, Oregon DHS began conducting home studies
to place the child with relatives. Oregon DHS determined the maternal
grandmother would not be an appropriate placement for the child because
the biological mother was living with the maternal grandmother. After that
determination, the mother left Florida and rejoined the father. At some
point, the mother and father reached Texas, where the father was arrested
for another domestic violence incident against the mother.
In August 2015, Oregon DHS approved the interested parties as an
appropriate foster care placement for the child, and transported the child
from Oregon to Florida to live with the interested parties. By this time, the
child was eight months old.
In November 2015, when the child was eleven months old, the maternal
grandmother, through counsel, filed a verified petition for temporary
custody with the Florida circuit court. In the petition, the maternal
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
3
state with his biological mother and alleged father in March
2015. [The child’s] absence from [the] 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 maternal grandmother did not serve her petition upon Oregon DHS,
which, at the time, remained the child’s legal guardian and custodian.
In January and February 2016, after the child turned one year old, the
Oregon court held permanency hearings to assess the biological parents’
compliance with the Oregon DHS case plans. Because the biological
parents had made no progress to comply with the case plans, Oregon DHS
modified the plan goal for the child from “reunification” to “adoption.”
Thereafter, Oregon DHS filed petitions with the Oregon court to terminate
the biological parents’ parental rights.
Also in February 2016, the maternal grandmother, through counsel,
filed with the Oregon court a motion for limited participation, seeking to
pursue permanent guardianship of the minor child, or to be designated as
the alternative temporary placement for the minor child, and also seeking
visitation with the minor child. [Unlike Florida, Oregon provides a
statutory right for grandparents to request visitation with the minor
grandchild. OR. REV. STAT. § 419B.876 (2016).] The Oregon court denied
the maternal grandmother’s motion.
In March 2016, when the child was fifteen months old, the maternal
grandmother filed with the Florida court a motion for judicial
communication with the Oregon court pursuant to section 61.519, Florida
Statutes (2015). The maternal grandmother’s motion alleged she was
seeking to argue that Florida, not Oregon, had initial custody jurisdiction.
The Florida court granted the maternal 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]?
4
[MATERNAL 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 [maternal grandmother] .... And
then [Oregon DHS] ... said, [“]You can’t live with the
[biological] 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.
5
[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 July and August 2016, when the child was nearly two years old, the
Oregon court terminated the biological mother’s and the biological father’s
parental rights.
In March 2018, when the child was over three years old, the Oregon
court entered a final judgment granting the interested parties’ adoption of
the child. The State of Florida thereafter issued a birth certificate
identifying the interested parties as the child’s legal parents.
In June 2018, when the child was nearly three-and-a-half years old,
the maternal grandmother, through new counsel, filed with the Florida
court a motion to disregard the Oregon court’s orders based on the Oregon
court’s alleged lack of jurisdiction under the UCCJEA. The motion was
the first action which the maternal grandmother had taken in either the
Oregon court or the Florida court in over two years. The maternal
grandmother did not serve the motion on either Oregon DHS or the
interested parties.
The maternal grandmother’s 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.” At the motion
hearing, which only the maternal grandmother’s new counsel attended,
the grandmother’s new counsel further argued: (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 facts that Florida DCF declined to accept supervision over the child,
and that the biological 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 maternal grandmother’s due process rights by
6
not letting her original counsel be heard during the jurisdiction hearing
two years earlier.
The Florida court denied the maternal grandmother’s motion. The
Florida court then entered an order dismissing the maternal
grandmother’s petition for temporary custody on the ground the Florida
court lacked initial custody jurisdiction because the Oregon court already
had exercised jurisdiction over the child.
This appeal followed. The maternal 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 maternal grandmother’s due process rights when it
communicated with the Oregon court during a jurisdiction hearing without
allowing the maternal grandmother’s counsel to participate.
The interested parties respond, in pertinent part: (1) the Florida court
properly dismissed the maternal grandmother’s petition for lack of
jurisdiction, as the Oregon court already had jurisdiction over this matter
under the UCCJEA, and such jurisdiction continued in Oregon through
and including the final judgment of adoption; and (2) the Oregon court’s
final judgment of adoption became valid and binding on all persons after
the expiration of one year from its entry, and such adoption’s validity may
not be questioned for any reason thereafter under Oregon law.
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 interested parties’
arguments. Therefore, we affirm the Florida court’s orders dismissing the
maternal grandmother’s petition and denying the maternal grandmother’s
motion to disregard the Oregon court’s orders. Although we agree with the
maternal grandmother that the Florida court erred in communicating with
the Oregon court during the jurisdiction hearing without allowing her
counsel to participate, we conclude such error was harmless under the
facts of this case. We address each argument in turn.
1. The Florida court properly found it lacked jurisdiction.
7
“The UCCJEA is a jurisdictional act that governs subject matter
jurisdiction over child custody matters.” McAbee v. McAbee, 259 So. 3d
134, 139 (Fla. 4th DCA 2018) (citation omitted).
“The general purposes of the UCCJEA are to avoid jurisdictional
competition and conflict with other courts in child custody matters;
promote cooperation with other courts; insure that a custody decree is
rendered in the state which enjoys the superior position to decide what is
in the best interest of the child; deter controversies and avoid relitigation
of custody issues; facilitate enforcement of custody decrees; and promote
uniformity of the laws governing custody issues.” McIndoo v. Atkinson,
159 So. 3d 227, 229 n.1 (Fla. 4th DCA 2015) (citation omitted).
Both Florida and Oregon have adopted the UCCJEA and, as a result,
both Florida’s and Oregon’s UCCJEA statutes are nearly identical in most
respects. Compare §§ 61.501–61.542, Fla. Stat. (2015), with OR. REV. STAT.
§§ 109.701–109.834 (2015).
Within Oregon’s codification of the UCCJEA, section 109.751, Oregon
Revised Statutes (2015), entitled “Temporary Emergency Jurisdiction,”
provides, in pertinent part:
(1) A court of this state has temporary emergency jurisdiction
if the child is present in this state and … it is necessary in an
emergency to protect the child because the child … is
subjected to or threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that is
entitled to be enforced … and a child custody proceeding has
not been commenced in a court of a state having jurisdiction …
a child custody determination made under this section remains
in effect until an order is obtained from a court of a state having
jurisdiction … If a child custody proceeding has not been or is
not commenced in a court of a state having jurisdiction … a
child custody determination made under this section becomes
a final determination if the determination so provides and this
state becomes the home state of the child.
(3) If there is a previous child custody determination that is
entitled to be enforced … or a child custody proceeding has
been commenced in a court of a state having jurisdiction ...
any order issued by a court of this state under this section
must specify in the order a period that the court considers
adequate to allow the person seeking an order to obtain an
8
order from the state having jurisdiction …. The order issued
in this state remains in effect until an order is obtained from
the other state within the period specified or the period
expires.
….
OR. REV. STAT. § 109.751 (2015) (emphasis added).
Oregon’s temporary emergency jurisdiction statute mirrors Florida’s
temporary emergency jurisdiction statute, section 61.517, Florida Statutes
(2015). See K.I. v. Dep’t of Children & Families, 70 So. 3d 749, 751 (Fla.
4th DCA 2011) (under section 61.517(1), “the court of another state may
exercise temporary jurisdiction in an emergency situation to protect a child
even though the court with initial custody jurisdiction has exclusive,
continuing jurisdiction”).
Here, the Oregon court, under section 109.751(1), Oregon Revised
Statutes (2015), had temporary emergency jurisdiction over the child when
the child was injured in the Oregon car accident, because that event,
caused by domestic violence between the father and mother while the child
was in the car, constituted an emergency in which the child was subjected
to mistreatment.
Because the maternal grandmother’s custody petition was not
commenced until after the Oregon court began exercising temporary
emergency jurisdiction, the Oregon court was permitted, under section
109.751(2), Oregon Revised Statutes (2015), to continue “exercising
temporary jurisdiction to make a custody determination … or even become
‘a final determination,’ if no other court steps up.” Dep’t of Human Servs.
v. J. S., 464 P.3d 157, 165 (Or. Ct. App. 2020). The Oregon court made a
final determination when it terminated the biological parents’ parental
rights, and then approved the interested parties’ adoption of the child.
Based on the foregoing, the Florida court correctly found the Oregon
court had jurisdiction over the child under the UCCJEA, and correctly
dismissed the maternal grandmother’s petition for lack of jurisdiction.
2. The Oregon court’s adoption judgment became final and
binding on all persons after one year from its entry.
In addition to the foregoing, by the time the maternal grandmother filed
this appeal to contest the Florida court’s lack of subject matter jurisdiction
determination, the child’s custody determination was already final.
9
Section 109.381(3), Oregon Revised Statutes (2015), states, in pertinent
part:
After the expiration of one year from the entry of a judgment of
adoption in this state the validity of the adoption shall be
binding on all persons, and it shall be conclusively presumed
that the child’s natural parents and all other persons who
might claim to have any right to, or over the child, have
abandoned the child and consented to the entry of such
judgment of adoption, and that the child became the lawful
child of the adoptive parents or parent at the time when the
judgment of adoption was rendered, all irrespective of
jurisdictional or other defects in the adoption proceeding. After
the expiration of the one-year period no one may question the
validity of the adoption for any reason, either through collateral
or direct proceedings, and all persons shall be bound thereby.
...
OR. REV. STAT. § 109.381(3) (emphases added); see also J.B.D. v. Plan
Loving Adoptions Now, Inc., 178 P.3d 266, 270 (Or. Ct. App. 2008) (section
109.381(3) “is a statute of limitation.”)
Here, the Oregon court entered its adoption judgment in the interested
parties’ favor on March 5, 2018. The maternal grandmother filed her
notice of appeal with this court on March 18, 2019. Thus, even if we were
to have concluded that a jurisdictional defect in the Oregon proceeding
existed (which we do not, as indicated above), the Oregon adoption
judgment became final and binding upon all persons. As such, we have
no authority to question the validity of the adoption for any reason in this
collateral proceeding.
3. The Florida court’s error in communicating with the Oregon
court during the jurisdiction hearing without allowing the
maternal grandmother’s counsel to participate was harmless.
Section 109.731, Oregon Revised Statutes (2015), entitled
“Communication Between Courts,” provides, in pertinent part:
(1) A court of this state may communicate with a court in
another state concerning a proceeding arising under [the
UCCJEA].
10
(2) The court may allow the parties to participate in the
communication. If the parties are not able to participate in
the communication, they must be given the opportunity to
present facts and legal arguments before a decision on
jurisdiction is made.
....
OR. REV. STAT. § 109.731 (2015) (emphasis added). As can be seen under
the Oregon communication statute, subsection (2)’s first sentence uses the
permissive word “may” to describe the parties’ ability to participate in the
communication between courts. But subsection (2)’s second sentence
uses the mandatory word “must” to describe the parties’ ultimate ability
to present facts and legal arguments before a jurisdiction decision is made.
Florida’s version of the UCCJEA’s “Communication Between Courts”
statute, section 61.511, Florida Statutes (2015), contains mandatory
language throughout subsection (2)’s second sentence. Section 61.511
provides, in pertinent part:
(1) A court of this state may communicate with a court in another
state concerning a proceeding arising under this part.
(2) The court shall allow the parties to participate in the
communication. If the parties elect to participate in the
communication, they must be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made.
....
§ 61.511, Fla. Stat. (2015) (emphasis added).
As our sister court held in Johnson v. Johnson, 88 So. 3d 335 (Fla. 2d
DCA 2012), “[w]e construe the words ‘shall’ and ‘must’ in [section
61.511(2)] to impose a mandatory duty upon the trial court that must be
performed before ruling.” Id. at 338 (emphasis added). See also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
112 (2012) (under the “Mandatory/Permissive Canon,” “[m]andatory
words impose a duty; permissive words grant discretion.”).
Here, regardless of the Oregon court’s interruption, the Florida court
erred in not allowing the maternal grandmother’s counsel “to participate
in the communication ... [and] be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made.” §
11
61.511(2), Fla. Stat. (2015). However, we consider this procedural error to
be harmless in light of the adoption’s finality. The adoption’s finality
makes this case distinguishable from our more general precedent
addressing section 61.511(2). See Haugabook v. Jeffcoat-Hultberg, 219 So.
3d 65, 67 (Fla. 4th DCA 2016) (“[T]he failure to allow a party to participate
in the communication with a court in another state requires reversal
[under section 61.511].”).
Conclusion
Based on the foregoing, we affirm the Florida court’s orders dismissing
the maternal grandmother’s petition for temporary legal custody of the
child, and denying the grandmother’s motion to disregard the Oregon
court’s orders.
Affirmed.
DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
12