In re N.U

No. 114,161
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of:
N.U., DOB: 2003, SEX: F.
SYLLABUS BY THE COURT
1.
Kansas district courts have original jurisdiction of all matters that a court might
properly address, whether civil or criminal, unless otherwise provided by law. The
Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), at K.S.A. 2015
Supp. 23-37,101 et seq., is a limitation provided by law on the subject matter jurisdiction
of the Kansas district courts.
2.
The UCCJEA applies to child in need of care proceedings under the Revised
Kansas Code for Care of Children. Accordingly, a Kansas court errs by exercising subject
matter jurisdiction over a child in need of care case concerning a child subject to a
previous child custody determination made by a court of another state without complying
with the provisions of the UCCJEA.
3.
Emergency jurisdiction under the UCCJEA is intended to be temporary in nature
and, unless a child has been abandoned, requires the existence of an actual emergency
requiring immediate court intervention. A finding that a child is in need of care under the
Revised Kansas Code for Care of Children is not sufficient, by itself, to support the
exercise of emergency jurisdiction under the UCCJEA.
1
4.
When a Kansas court assumes temporary emergency jurisdiction over a child in
need of care case under the UCCJEA, the Kansas court must place a limit on the duration
of its temporary emergency jurisdiction in the order assuming jurisdiction. The UCCJEA
provides that the order must specify a period of time that the Kansas court considers
adequate to allow the person seeking a change of jurisdiction from the child's home state
to Kansas to obtain such an order.
5.
The UCCJEA provides that a temporary emergency order remains in effect until
the necessary order is obtained from the child's home state within the period specified by
the court or the period expires. If the period expires before the necessary order permitting
Kansas to exercise jurisdiction is obtained from the home state, Kansas loses its
temporary emergency jurisdiction. Because the Kansas court otherwise lacks subject
matter jurisdiction, it must dismiss the case.
Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed March 11, 2016.
Reversed and case dismissed.
Terry J. Malone, of Williams-Malone, P.A., of Dodge City, for appellant father.
Kathleen Neff, assistant county attorney, for appellee.
Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.
JOHNSON, J.: J.U. (father) appeals from an order entered by the Ford County
District Court in the child in need of care (CINC) case concerning N.U., the daughter of
J.U. and C.B. (mother). Recognizing that N.U.'s home state was Nebraska where J.U. still
resided, on January 5, 2015, the district court exercised temporary emergency jurisdiction
over N.U. pursuant to K.S.A. 2015 Supp. 23-37,204(a), found that N.U. was a CINC,
2
placed her with mother (a Kansas resident), and stated that its CINC order would "remain
in force for a period of 6 mos., pursuant to K.S.A. 23-37,204(c)." The 6-month period
expired July 5, 2015, but neither the State nor mother had obtained a transfer of
jurisdiction from Nebraska. Mother then moved for more time to do so, which the district
court granted. Father appeals that order, arguing that the district court's temporary
emergency jurisdiction over N.U.'s custody had expired. We agree with father. We
reverse the district court and order that the CINC case be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
N.U. was born in 2003 to C.B., mother, and J.U., father, who were residents of
Nebraska. Shortly thereafter N.U.'s parents ceased their cohabitation. Child custody
litigation followed. In 2008, the Sarpy County District Court in Nebraska resolved the
parents' disputes for them: The court retained custody of N.U. but granted N.U.'s
"primary possession" to father. Mother then moved to Kansas. N.U. continued to reside
with father in Nebraska. The Nebraska court apparently left N.U.'s custodial status
unchanged, although in December 2011, it ordered mother to begin paying child support.
Documents in the record indicate that each parent acquired new significant others
and children over the succeeding years. Mother did not visit N.U. in person for roughly 6
years. Then, in early August 2014, the parents agreed that N.U. should stay with mother,
at least for a while. The parents met, each signing a note indicating that mother was to
have "possession" of N.U. "effective as of Sunday, August 10th, 2014" so that mother
could obtain medical treatment for N.U. and enroll her in school. N.U. then remained
with mother in Kansas. Almost immediately N.U. made complaints to mother about how
she had been treated by father's girlfriend, C.R. The Kansas Department for Children and
Families (DCF) commenced an investigation. N.U. alleged to DCF workers that C.R.
treated her roughly verbally and physically. N.U. also alleged that C.R.'s son, who was
close to N.U.'s age, touched her sexually.
3
On August 20, 2014, the State filed a petition in Gray County to have N.U.
declared a CINC and be placed with mother. After a change of venue due to mother's
relocation, the litigation proceeded in Ford County. In November 2014, father challenged
Kansas' subject matter jurisdiction under the Uniform Child-Custody Jurisdiction and
Enforcement Act (UCCJEA), K.S.A. 2015 Supp. 23-37,101 et seq., based on the existing
child-custody case in Nebraska and father's continued residence there. The Ford County
District Court took up adjudication on the CINC petition and the motion to dismiss
January 5, 2015. Father did not include the transcript of that hearing in the record.
However, the district court entered a detailed journal entry regarding its findings and
conclusions from that hearing. The court refused to dismiss the case. It determined that
clear and convincing evidence supported a finding that N.U.'s conflict with C.R. "arose to
at least the threat of mistreatment of the child by [C.R.]." The court determined that it had
"temporary emergency jurisdiction pursuant to K.S.A. 23-37,204(a)" and found N.U. to
be a CINC. The court placed N.U. with mother. The court indicated it would contact the
Sarpy County District Court about its order "pursuant to K.S.A. 23-37,204(d)." Finally,
the court specified that its CINC order "will remain in force for a period of 6 mos.,
pursuant to K.S.A. 23-37,204(c)."
Neither mother nor the State timely, i.e., by the July 5, 2015, end date of the 6-
month period, obtained an order from the Sarpy County District Court relinquishing
jurisdiction to Kansas or otherwise authorizing Kansas courts to exercise jurisdiction over
N.U.'s custody. On July 7, 2015, after the Kansas court's period for exercising temporary
emergency jurisdiction under the UCCJEA had expired, mother filed a motion to extend
the Kansas court's emergency jurisdiction. Mother alleged that "Mother has not had
adequate time to obtain an order from the State of Nebraska." Later that same day, father
filed a petition to enforce the UCCJEA, pointing out that the 6-month emergency
jurisdiction period had passed without any authorization emanating from the Nebraska
court that permitted Kansas to exercise jurisdiction over N.U.'s custody.
4
The district court conducted a hearing July 13, 2015, on the competing filings by
mother and father. At the conclusion of the hearing, the district court decided "something
has to be done" and in "light of the uncertainty" the district court ordered that the period
of temporary emergency jurisdiction be extended for no more than 30 days. The district
court indicated it would "send a written request to the District Court of Sarpy County,
Nebraska, to make a determination to retain or relinquish jurisdiction." Father timely
filed a notice of appeal from this order on July 15, 2015.
The parties have included in the record additional documents filed after the
appealed-from order. The district court apparently prepared its own written Request for
Determination of Jurisdiction, which it sent to the Sarpy County District Court on July
16, 2015. The request summarized the proceedings in Kansas up to that point in time. It
also included a note indicating that mother sought to have jurisdiction transferred to
Kansas as a more convenient forum and home state of the child but that father objected to
the transfer of jurisdiction, believing Nebraska to be the more appropriate forum. The
form included option blanks the Nebraska court could check to either retain or relinquish
jurisdiction. The Nebraska court responded, marking the optional finding that "Kansas is
the more appropriate jurisdiction for addressing child custody and enforcement issues for
[N.U.]" and that the pending child-custody case in Nebraska "should be terminated and
dismissed." That response from the Sarpy County court was filed with the clerk of the
court in Ford County on August 3, 2015.
ANALYSIS
This Appeal Is Not Moot.
As a threshold matter, the State argues that the issues father raises in his appeal are
now moot. The State contends this is so because the Nebraska court has relinquished
jurisdiction over N.U.'s future custody to Kansas. The State seems to take the position
5
that the Nebraska relinquishment negates any previous orders it entered and validates all
the orders in the Kansas CINC case. Father counters that, if he prevails on appeal and the
CINC case here is dismissed, the last custody order in effect is the 2008 Nebraska order
granting him N.U.'s "primary possession." Thus, he argues in essence that, even if
Nebraska has closed its case, mother must return N.U. to him or seek a custody
modification or new CINC order from a Kansas court.
Appellate courts generally do not decide moot questions or render advisory
opinions. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009); Smith v. Martens,
279 Kan. 242, 244, 106 P.3d 28 (2005). However, the mootness doctrine is rarely applied
to dismiss an appeal unless "it is clearly and convincingly shown the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and it would not impact any of the parties' rights." McAlister v. City of Fairway, 289 Kan.
391, 400, 212 P.3d 184 (2009).
As we noted above, the Nebraska court did not relinquish jurisdiction to Kansas
until after the expiration of the 6-month period during which Kansas was exercising its
temporary emergency jurisdiction under the UCCJEA. To effect that jurisdictional
relinquishment the Nebraska court simply checked the blank for the option that it
"[f]inds Kansas is the more appropriate jurisdiction for addressing child custody and
enforcement issues for [N.U.] and the pending custody litigation in [the Nebraska court]
should be terminated and dismissed and jurisdiction to address custody and parental
rights should be transferred to the state of Kansas."
The Nebraska court also attached a copy of an entry on its docket that states that
on July 22, 2015, that court signed and entered an "[o]rder finding Kansas as the
appropriate jurisdiction."
6
As we explain below, the Ford County District Court erred when it extended its
emergency jurisdiction. The district court should have dismissed the CINC case as of July
5, 2015, when it became manifest that Kansas had not timely acquired jurisdiction under
the UCCJEA. Thus, while the Nebraska jurisdiction relinquishment may well be relevant
if there is future litigation over N.U.'s custody, and we assume there will be, it does not
render the issues father raises in his appeal moot. Needless to say, the State has failed to
"clearly and convincingly [show] the actual controversy has ended, the only judgment
that could be entered would be ineffectual for any purpose, and it would not impact any
of the parties' rights." McAlister, 289 Kan. at 400.
We Dismiss Father's Challenge to the Kansas Court's Initial Exercise of Temporary
Emergency Jurisdiction under the UCCJEA.
In his brief on appeal, father contends that the district court erred in exercising
temporary emergency jurisdiction in the first place following the January 5, 2015,
hearing. The State notes that we cannot adequately address this claim because father did
not include a transcript of that hearing in the record on appeal.
We agree with the State: Father's real point under this issue is that the evidence at
the hearing was insufficient to support the trial court's exercise of temporary emergency
jurisdiction under the UCCJEA. In order to exercise such temporary emergency
jurisdiction, the Kansas court had to find that "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." K.S.A. 2015 Supp. 23-37,204(a). The district
court's journal entry from the hearing specifically cited that statute and held that clear and
convincing evidence showed that the conflict between N.U. and C.R. "arose to at least the
threat of mistreatment of the child by [C.R.]." We cannot evaluate the sufficiency of the
evidence supporting that finding without considering the testimony on which it was
based. The burden is on the party making a claim of error to designate facts in the record
7
to support that claim; without such a record, the claim of error fails. See Supreme Court
Rule 6.02(a)(4) (2015 Kan. Ct. R. Annot. 41); Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 644-45, 294 P.3d 287 (2013).
But there is a more fundamental reason we must dismiss this portion of father's
appeal. Father's notice of appeal states that he "appeals from the judgment entered on July
13, 2015 by the Honorable Van Z. Hampton extending temporary jurisdiction beyond the
original order of [sic] setting the temporary jurisdiction at six months on January 5, 2015,
to the Court of Appeals of the State of Kansas." Father's notice does not indicate that he
appeals from the order of January 5, 2015, nor does he cite any error from that hearing in
his docketing statement. We note that father timely appealed from the adjudication order
entered at that hearing, but he subsequently dismissed that separate appeal in April 2015.
While the State does not challenge our jurisdiction over this point, we have a duty
to question jurisdiction on our own initiative. According to K.S.A. 2015 Supp. 60-
2103(b): "The notice of appeal shall specify the parties taking the appeal; shall designate
the judgment or part thereof appealed from, and shall name the appellate court to which
the appeal is taken." Moreover, our Supreme Court has stated that it is a fundamental
proposition of Kansas appellate procedure that "'an appellate court only obtains
jurisdiction over the rulings identified in the notice of appeal.' [Citation omitted.]"
(Emphasis added.) Associated Wholesale Grocers, Inc. v. Americold Corporation, 293
Kan. 633, 637, 270 P.3d 1074 (2011), cert. denied 133 S. Ct. 158 (2012).
In Gates v. Goodyear, 37 Kan. App. 2d 623, 627, 629, 155 P.3d 1196, rev. denied
284 Kan. 945 (2007), a panel of this court pointed out that accepting jurisdiction to
review findings, conclusions, or judgments that were not set out in the notice of appeal
"would adjudicate out of existence the statutory mandate that a notice of appeal 'shall
designate' the judgment appealed from." We will apply, rather than adjudicate out of
existence, that mandate. The notice of appeal here does not designate the trial court's
8
rulings from the January 5, 2015, hearing as rulings that father was appealing. We do not
have jurisdiction to review this separate issue. We dismiss for lack of jurisdiction father's
attempt to appeal from the result of the January 5, 2015, adjudication hearing. See Gates,
37 Kan. App. 2d at 626.
The District Court Erred When It Extended Its Temporary Emergency Jurisdiction under
the UCCJEA.
In this issue, father challenges the district court's jurisdiction under the UCCJEA
to extend, as it did in its order of July 13, 2015, its temporary emergency jurisdiction for
an additional 30 days. Father argues the district court's jurisdiction over the case expired
on July 5, 2015, as the original order said it would. The State does not directly respond to
father's UCCJEA argument. Rather, it contends that the 6-month temporary emergency
jurisdiction period initially established was "tolled" during the period from February 4,
2015, when father filed his notice of appeal from the adjudication hearing, to April 6,
2015, when father dismissed that appeal.
Whether jurisdiction exists is a question of law over which this court exercises
unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). Here,
father's challenge to the Kansas court's jurisdiction under the UCCJEA raises a question
of law. As this court explained in In re A.A., 51 Kan. App. 2d 794, 806-07, 354 P.3d 1205(2015), to exercise temporary emergency jurisdiction under the UCCJEA, the Kansas
court had to find "the child is present in this state and the child has been abandoned or it
is necessary in an 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." K.S.A. 2015 Supp.
23-37,204(a). A finding that a child is in need of care under the Revised Kansas Code for
Care of Children is not sufficient, by itself, to support the exercise of emergency
jurisdiction under the UCCJEA. The district court made the necessary findings here.
9
But another crucial aspect of the UCCJEA is that the emergency jurisdiction
which participating home states cede to second states is that the emergency jurisdiction is
temporary. Thus, the home state's original jurisdiction must be recognized and
accommodated even while the second state in which the child is present protects the child
on a temporary emergency basis. K.S.A. 2015 Supp. 23-37,204(c) provides that the state
that exercises emergency jurisdiction over a child's custody must, at the time it enters its
emergency order, determine how long the emergency order can remain in effect:
"(c) If there is a previous child-custody determination that is entitled to be
enforced under this act, or a child-custody proceeding has been commenced in a court of
a state having jurisdiction under K.S.A. 2015 Supp. 23-37,201 through 23-37,203, and
amendments thereto, 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 order from the state having jurisdiction under K.S.A. 2015
Supp. 23-37,201 through 23-37,203, and amendments thereto. 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." (Emphasis added.) K.S.A. 2015 Supp. 23-37,204(c).
Our court has examined the reasons such provisions have been uniformly enacted.
They minimize tension between otherwise competing states' jurisdictional interests in
order to protect children in emergency situations. In In re A.A., Judge Steve Leben
explained:
"In state courts, a trial court will be designated to have broad subject-matter
jurisdiction to hear claims. In Kansas, our district courts by statute 'have general original
jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.'
K.S.A. 20-301. As a general matter, then, our district courts have the subject-matter
jurisdiction to consider disputes that a court might address unless some other statute
limits that authority. See In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161(2010); City of Overland Park v. Niewald, 20 Kan. App. 2d 909, 910-11, 893 P.2d 848,
aff'd as modified 258 Kan. 679, 907 P.2d 885 (1995).
10
"The UCCJEA is one source of such statutory limits. All but one state has
adopted it (and that state, Massachusetts, has adopted an earlier, similar uniform act, the
Uniform Child Custody Jurisdiction Act). Kansas adopted the UCCJEA in 2000, and
Mississippi adopted it in 2004. We will cite in our opinion to provisions of the Kansas
statutes, but Mississippi has the same provisions.
"The UCCJEA seeks to avoid jurisdictional competition between the courts of
different states over child-custody matters. It does so through rules that generally make
sure that only one state at a time has jurisdiction (authority) over child-custody matters in
any particular family.
"Central to the UCCJEA's method of keeping order between potentially
conflicting state proceedings are two provisions. First, an initial custody determination
generally must be made by the child's 'home state,' which is where the child has lived for
at least 6 consecutive months before a court proceeding over custody was filed. See
K.S.A. 2014 Supp. 23-37,201(a), (b); K.S.A. 2014 Supp. 23-37,102(8). Second, once an
initial custody determination has been made, the state that made it generally retains
exclusive jurisdiction over later custody issues until an event listed in the UCCJEA (such
as a determination that neither parent nor the child still lives in the state) occurs. See
K.S.A. 2014 Supp. 23-37,202(a).
"In addition to these listed events, there are two other ways that a second state
may properly enter custody orders after initial orders have been entered by the child's
home state. The first is the emergency exception, which allows another state's court to
exercise temporary authority when a child has been abandoned or there's some other
emergency need to immediately protect the child. See K.S.A. 2014 Supp. 23-37,204(a),
(c), and (d). The second is a valid transfer of the case from Mississippi to Kansas, either
based on a finding that Mississippi had become an inconvenient forum for the litigation,
see K.S.A. 2014 Supp. 23-37,207, or a finding that Mississippi no longer had continuing
exclusive jurisdiction. See K.S.A. 2014 Supp. 23-37,203.
....
11
"Emergency jurisdiction under the UCCJEA allows courts to enter temporary
orders to protect a child—but absent child abandonment, the situation must indeed be an
emergency . . . . An emergency is '[a] serious situation or occurrence that happens
unexpectedly and demands immediate action.' American Heritage Dictionary 583 (5th ed.
2011)." In re A.A., 51 Kan. App. 2d at 803-07.
This court published its opinion in In re A.A. with the specific purpose of
providing instruction on the UCCJEA to "[b]oth the judges and the attorneys who handle
these cases [and] often have heavy caseloads." 51 Kan. App. 2d at 813. We agree with
Judge Leben's analysis for the panel in In re A.A. In a nutshell, the UCCJEA allows home
states to preserve their own jurisdictional power over their child custody determinations
but also permits second states in which a home state's child is present to protect the child
from mistreatment, at least on a temporary emergency basis. Without something like the
UCCJEA an endangered child could suffer because of the lack of jurisdiction of a second
state to protect the child.
However, the specific issue the In re A.A. court analyzed is not the one we must
address here. There the court explained how the provisions of the UCCJEA must be
applied at the outset of a CINC case where the second state, Kansas, is asked to protect a
child from mistreatment who is subject to another (the "home") state's jurisdiction. 51
Kan. App. 2d at 806. From all appearances, the district court here was well aware of the
statutes Kansas has enacted in compliance with the UCCJEA when it made its January 5,
2015 orders. It incorporated specific references to the applicable UCCJEA statute, K.S.A.
2015 Supp. 23-37,204, and its relevant subsections when it made its emergency order.
Further, as was another goal of the court in In re A.A., each party has referred to the
holding in that case in its brief.
The issue in this case does not concern the initial acquisition of UCCJEA
jurisdiction. The question here concerns the termination of the temporary emergency
jurisdiction that has been acquired under the UCCJEA. Thus, we must look to and apply
12
the specific provisions of our UCCJEA statutes when those supply the only basis for
Kansas jurisdiction. Here the district court initially complied with the requirement in
K.S.A. 2015 Supp. 23-37,204(c) that the court "must specify in the [temporary
emergency] order a period that the court considers adequate to allow the person seeking
an order to obtain an order from the state having jurisdiction under K.S.A. 2015 Supp.
23-37,201 through 23-37,203, and amendments thereto." The district court did so and
determined that 6 months was such an adequate period.
However, mother did not comply with that order: She did not "obtain an order
from" Nebraska relinquishing jurisdiction to Kansas within that 6-month period. The
statute directs what a court must do in such a situation. K.S.A. 2015 Supp. 23-37,204(c)
provides for the termination of jurisdiction acquired under the temporary emergency
provisions of the UCCJEA, stating that "[t]he 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." (Emphasis added.)
Here, the 6-month "period" established in the district court's temporary emergency
jurisdiction order in N.U.'s CINC case clearly expired before mother moved for
additional time. The period having expired, the temporary emergency order giving
Kansas jurisdiction over N.U.'s CINC case no longer remained in effect. It is not
necessary that we decide whether an extension request made before the expiration of the
originally set temporary emergency period could be granted. That is not what happened
here.
Although the State does not argue a different construction of K.S.A. 2015 Supp.
23-37,204(c), the State does argue that the 6-month period set by the district court was
tolled for the roughly 60-day period between father's appeal of the January 5, 2015,
adjudication order and father's subsequent voluntary dismissal of that appeal. The State
also argues that the 6-month time limit should not apply because father obtained
13
continuances in the Nebraska court of hearings on mother's efforts to terminate her child
support obligation. The State says father exhibited "plain and simple bad faith" which
allowed him to "burn through the six month period for activity set by the court." The
record does not contain any evidence of these claims from the Nebraska court nor does
the State offer any legal authority to support them.
We note that K.S.A. 2015 Supp. 38-2273 governs appeals in CINC cases. K.S.A.
2015 Supp. 38-2273(a) specifically permits an appeal from an order of adjudication, the
order father appealed, which appeal he subsequently dismissed. We further note that
K.S.A. 2015 Supp. 38-2273(f) provides that "[w]hile a case is on appeal from the district
court, the district court or magistrate court shall continue to have jurisdiction over all
issues not specifically appealed and shall conduct timely permanency hearings." Father's
appeal only concerned the propriety of the district court's acceptance of emergency
temporary jurisdiction and the CINC adjudication. Finally, we note that K.S.A. 2015
Supp. 38-2274(a) provides: "Pending the determination of the appeal, any order appealed
from shall continue in force unless modified by temporary orders as provided in
subsection (b)." The CINC appeal statutes did not in any way, then, prevent mother, the
State, or the district court from taking steps to attempt to obtain a transfer of or
relinquishment of jurisdiction from Nebraska. The State's argument for tolling is without
merit.
The district court erred when it granted mother a 30-day extension on the court's
temporary emergency jurisdiction and rejected father's request that the CINC case be
dismissed for lack of jurisdiction. We reverse the district court's decisions on those
issues, find that the Kansas court's UCCJEA temporary emergency jurisdiction expired
before mother moved for an extension, and dismiss the CINC case from which this
appeal arises for lack of subject matter jurisdiction.
Reversed and case dismissed.
14