K.D. v. IN RE: IN THE INTEREST OF P.P., R.P., and L.P.

Third District Court of Appeal
State of Florida
Opinion filed March 23, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2420
Lower Tribunal No. 21-15251
________________
K.D.,
Appellant,
vs.
In re: In the Interest of P.P., R.P., and L.P.,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Michelle
Alvarez Barakat, Judge.
Law Office of Kelly D. Feig, P.A., and Kelly D. Feig (Hallandale Beach),
for appellant.
Kevin G. Thomas, for appellee T.P., the mother.
Before SCALES, MILLER, and BOKOR, JJ.
MILLER, J.
Appellant, K.D., the aunt, challenges a final order dismissing her
private dependency petition for lack of jurisdiction. Concluding the trial court
is authorized to exercise jurisdiction under two independent provisions of the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), as
codified in sections 61.501 et seq., Florida Statutes (2022), we reverse and
remand for further proceedings.
BACKGROUND
After the children traveled from Ohio to Florida to join their maternal
aunt for a vacation, they disclosed they had suffered extreme emotional and
physical abuse at the hands of their mother and her live-in girlfriend. Fearing
for their safety, the aunt refused to return the children to the mother, and
instead, approximately two months after their arrival in the state, petitioned
the family court for extended family custody pursuant to chapter 751 of the
Florida Statutes (2022). The family court temporarily awarded the aunt legal
custody and authorized her to enroll the children in school, manage medical
care, and obtain copies of birth certificates, report cards, insurance cards,
immunization records, social security cards, and social services records.
This arrangement continued for more than six months, and the aunt
then filed dependency and shelter petitions. Two days after the petitions
were filed, the dependency court convened an emergency shelter hearing.
2
The court continued the hearing, however, upon learning the mother had not
been afforded proper notice.
Approximately eight days later, the family court rendered an order
dismissing the aunt’s extended family petition. In the order of dismissal, the
family court found that because the children were merely visiting Florida at
the time the petition was filed, the aunt failed to demonstrate she was an
“extended family member who is caring full time for the child[ren] in the role
of a substitute parent and with whom the child[ren] [are] presently living.” §
751.02(1)(b), Fla. Stat. Thus, she lacked standing to pursue the petition.
The family court further ordered that the children be reunified with their
mother within seven days.
The dependency court subsequently reconvened the shelter hearing.
At the conclusion of the hearing, the court rendered a finding that the children
had been choked and tortured and struck with various household objects,
including belts, telephone cords, and shoes, by the mother and her girlfriend,
and awarded the aunt temporary custody. These findings were purportedly
substantiated by the testimony of the eldest child, along with a guardian ad
litem report and text message exchanges between the mother and the eldest
child.
3
The court then set the dependency petition for trial, but on the eve of
trial, the mother filed a motion to dismiss. After convening a hearing on the
motion, the court found that the factual findings embodied within the family
court order precluded a finding of jurisdiction. The instant appeal ensued.
STANDARD OF REVIEW
Where the facts are not in dispute, subject matter jurisdiction under the
UCCJEA implicates a pure question of law, and we apply a de novo standard
of review. See Miller v. Mitchell, 328 So. 3d 1067, 1069 (Fla. 3d DCA 2021).
Factual findings involving jurisdictional determinations, however, are
reviewed for competent, substantial evidence. See Martinez v. Lebron, 284
So. 3d 1146, 1149 (Fla. 5th DCA 2019).
ANALYSIS
“Subject matter jurisdiction—the ‘power of the trial court to deal with a
class of cases to which a particular case belongs’—is conferred upon a court
by constitution or by statute.” Strommen v. Strommen, 927 So. 2d 176, 179
(Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630
So. 2d 179, 181 (Fla. 1994)). In the realm of child custody disputes, a court’s
exercise of subject matter jurisdiction is guided by the UCCJEA, a uniform
law that has been adopted in some iteration by all states, with the exception
of Massachusetts. See Linda D. Elrod, Child Custody Practice and
4
Procedure § 3:8 (2021). The UCCJEA strives to avoid jurisdictional
competition between states, promote cooperation, avoid re-litigation of child
custody decrees, and facilitate enforcement of another state’s custody
decisions. See § 61.502, Fla. Stat.
In 2002, the Florida Legislature adopted provisions of the UCCJEA, as
codified in sections 61.501 et seq., Florida Statutes. See Steckler v.
Steckler, 921 So. 2d 740, 742 n.1 (Fla. 5th DCA 2006). 1 Pursuant to the
initial child custody provision of the UCCJEA, jurisdiction to determine initial
custody matters is vested in the “home state” of the child. See §
61.514(1)(a), Fla. Stat. (2022); Arjona v. Torres, 941 So. 2d 451, 454 (Fla.
3d DCA 2006). “Home state” is statutorily defined 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.” § 61.503(7), Fla. Stat. 2 In computing the requisite six-
month period, “[a] temporary absence of [a parent or person acting as a
parent] is part of the period.” Id.; Ohio Rev. Code Ann. § 3127.01(7) (West
2022).
1
Ohio’s version of the UCCJEA is codified in section 3127.15 of the Ohio
Code.
2
The Ohio statute contains an identical definition. See Ohio Rev. Code Ann.
§ 3127.01(7) (West 2022).
5
In this context, “a person acting as a parent” is statutorily defined as
one who:
(a) 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
(b) Has been awarded a child-custody determination by a court
or claims a right to a child-custody determination under the laws
of this state.
§ 61.503(13), Fla. Stat.; Ohio Rev. Code Ann. § 3127.01(13) (West 2022).
“The state with home state jurisdiction over the child has [jurisdictional]
priority under the UCCJEA.” Baker v. Tunney, 201 So. 3d 1235, 1237 (Fla.
5th DCA 2016); see § 61.514(1)(a), Fla. Stat. There are, however, two
narrowly crafted exceptions to this general rule. The first is that where “no
state has ‘home state’ jurisdiction and the child, the child’s parents, or the
child and at least one contestant have a significant connection with Florida
and there is substantial evidence concerning the child’s present or future
care, protection, and personal relationships in Florida,” the courts of this state
may also exercise jurisdiction. Florida Bar, Florida Juvenile Law and
Practice § 11.2(C) (16th ed. 2020); see § 61.514(1)(b), Fla. Stat. The second
is that all courts are empowered to exercise temporary emergency
jurisdiction. Exercise of this jurisdiction is proper “if the child is present in
[the] state and the child has been abandoned or it is necessary in an
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emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.” § 61.517(1),
Fla. Stat.
Regarding the latter exception, section 61.517(2), Florida Statutes,
further provides:
If there is no previous child custody determination that is entitled
to be enforced under this part, and a child custody proceeding
has not been commenced in a court of a state having jurisdiction
under ss. 61.514–61.516, a child custody determination made
under this section remains in effect until an order is obtained from
a court of a state having jurisdiction under ss. 61.514–61.516. If
a child custody proceeding has not been or is not commenced in
a court of a state having jurisdiction under ss. 61.514–61.516, a
child custody determination made under this section becomes a
final determination if it so provides and this state becomes the
home state of the child.
By this plain language, a child custody determination made pursuant to the
court’s temporary emergency jurisdiction continues in force until someone—
anyone—obtains an order of the home state court declining or assuming
jurisdiction.
In the instant case, the predicates for temporary emergency jurisdiction
were met when the dependency court sheltered the children upon a finding
of abuse, and those circumstances remain unchanged. The children are
present in the state, and, because the shelter judge substantiated the
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allegations of violence, reunification with the mother indubitably presents an
immediate risk of danger to the children.
Although the abuse occurred predominantly in Ohio and South
Carolina, this court has previously determined that abuse perpetrated
outside of Florida is sufficient to invoke the temporary emergency jurisdiction
of the courts of this state. In K.H. v. Department of Children & Family
Services, 846 So. 2d 544 (Fla. 3d DCA 2003), a family with “absolutely no
connection to the State of Florida was divested of three children” after they
were intercepted by the Department of Children and Families at Miami
International Airport while traveling from Brazil to the District of Columbia.
Id. at 545. Due to allegations of abuse reported to have occurred on United
States embassy property in Brazil, dependency proceedings were convened
in Florida and the children were placed in foster care. Id. at 546. Although
acknowledging serious concerns over jurisdiction, this court found the trial
court had temporary emergency jurisdiction pursuant to section 61.517(1),
Florida Statutes, and section 39.013(2), Florida Statutes. Id. at 546–47. In
accord with this precedent, and in the absence of parallel proceedings in
Ohio or any other State, we conclude the dependency court maintains
continuing temporary emergency jurisdiction.
8
We next consider whether the dependency court possessed home
state jurisdiction. By the time the dependency petition was filed, the children
had been living legally in the custody of their aunt for more than six months.
The mother eschews the contention that these facts, standing alone, are
sufficient to establish home state jurisdiction. Instead, she argues that the
dismissal of the extended family petition has a preclusive effect on any
exercise of jurisdiction by the dependency court. This argument misses the
mark.
Jurisdiction under the UCCJEA is assessed at the inception of the
case. Here, the aunt filed her extended family petition less than two months
after the children arrived in Florida. At that time, the children were mere
visitors in the state and still in the legal custody of their mother.
Consequently, the children had not been residing with “a person acting as a
parent” in Florida for six months, as required to justify an exercise of home
state jurisdiction.
Exercising temporary emergency jurisdiction, however, the family court
awarded physical custody of the children to the aunt. Because the aunt had
court-ordered physical custody, her status changed to that of “a person
acting as a parent” under the UCCJEA. Thus, Florida ripened into the home
state of the children at the six-month mark.
9
The aunt did not file the dependency petition until the six-month mark
passed. Accordingly, the dependency court was authorized to exercise
home state jurisdiction.
The factual findings reflected in the extended family petition dismissal
do not vary this conclusion. While jurisdiction under the UCCJEA is a
prerequisite to all child custody determinations, as aptly observed by the
family court judge, chapter 751 of the Florida Statutes imposes additional
hurdles for nonconsensual petitions for extended family custody.
Specifically, section 751.02(1)(b), Florida Statutes, limits such petitions to an
“extended family member who is caring full time for the child in the role of a
substitute parent and with whom the child is presently living.” This particular
standing requirement, like jurisdiction, is assessed from the filing of the
petition.
Here, the same facts that doomed the jurisdictional aspects of the
extended family petition necessitated dismissal. As previously discussed, at
the time the aunt filed the petition, she was not caring for the children in the
role of substitute parent. Further, the children were not living with her.
Rather, she acted as hostess, and the children were mere visitors.
Consequently, the aunt lacked standing to pursue her petition.
10
These facts may not be viewed as static. Instead, the events occurring
in the six months preceding the filing of the dependency case are controlling.
Thus, there is no overlap in analysis.
Finally, the safety of children in our state is of paramount concern. See
§ 39.001(b)1., Fla. Stat. (“The health and safety of the children served shall
be of paramount concern.”). Consistent with this prerogative, the Florida
Legislature has mandated that dependency court orders “take precedence
over other orders affecting the placement of, access to, parental time with,
adoption of, or parental rights and responsibilities for the same minor child
or children, unless the jurisdiction of the dependency court has been
terminated,” Fla. R. Juv. P. 8.260(d), and upon filing of the dependency
petition, the dependency court is vested with exclusive original jurisdiction
until it chooses to relinquish jurisdiction or the child reaches the age of
eighteen. See § 39.013(2) (“Jurisdiction attaches when the initial shelter
petition, dependency petition, or termination of parental rights petition . . . is
filed or when a child is taken into the custody of the department.”); §
39.013(4), Fla. Stat. (“Orders entered pursuant to this chapter which affect
the placement of, access to, parental time with, adoption of, or parental rights
and responsibilities for a minor child shall take precedence over other orders
entered in civil actions or proceedings.”). Relying upon these principles, the
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courts of this state have been reluctant to apply claim preclusion in the
dependency arena. See Stefanos v. Rivera-Berrios, 673 So. 2d 12, 13 (Fla.
1996); see also Green v. State, Dep’t of Health & Rehab. Servs., Soc. &
Econ. Servs. Program, 412 So. 2d 413, 414 (Fla. 3d DCA 1982); State, Dep’t
of Revenue, Off. of Child Support Enf’t ex rel. D.J.N. v. Redding, 685 So. 2d
1000, 1002 (Fla. 3d DCA 1997). We need not probe the rationale advanced
in this body of law today, however, as to the extent there is a conflict between
custody rulings, those by the dependency court prevail.
Accordingly, we conclude the lower tribunal erred in finding it lacked
jurisdiction to adjudicate the dependency dispute. The court was authorized
to exercise both temporary emergency and home state jurisdiction. We
therefore reverse and remand for further proceedings.
Reversed and remanded.
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