Opinion
No. H-12 CP10-013578-A
March 16, 2011
MEMORANDUM OF DECISION RE JURISDICTION
This court has raised sua sponte the issue of jurisdiction of the Superior Court in a child protection matter over a child born in Connecticut while her mother was here temporarily, visiting relatives. The matter was originally continued for this court to confer with a court in the state of Florida where both parents live. Since then, however, the court has reviewed the relevant law and, for the reasons set forth herein, concludes that it has jurisdiction over the child because no other state does. The court also concludes that, if all parties agree, it would be in the best interest of the child for this court, after an adjudication of neglect and a disposition committing the child, to stay the proceeding here on the condition that a corresponding proceeding be promptly commenced in Florida, after which the court would decline to continue exercising jurisdiction over the child on the grounds of inconvenient forum.
The child, Leona D., is presently in the custody of the Connecticut department of children and families (DCF) pursuant to an order of temporary custody (OTC) pursuant to General Statutes § 17a-101g that was issued shortly after she was born on November 19, 2010. The commissioner of DCF subsequently filed a neglect petition as to the child. Both of the child's parents reside in Florida, but attended a neglect hearing before this court at which they entered pleas of nolo contendere to a count of the child having been neglected by living under conditions injurious to its well-being. The court deferred entering an adjudication of neglect pending consideration of the court's jurisdiction. The parents and DCF agree that the matter should be transferred to Florida. DCF does not want the child to be committed to its care, and has asked the court to commit the child to its counterpart agency in Florida. At hearing before this court on February 10, 2011, counsel for DCF informed the court that the Florida agency will not accept custody of the child unless this court enters a disposition.
General Statutes § 17a-101g provides in relevant part as follows: "(e) If the Commissioner of Children and Families, or the commissioner's designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or the commissioner's designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian . . . (f) The removal of a child pursuant to subsection (e) of this section shall not exceed ninety-six hours. During the period of such removal, the commissioner, or the commissioner's designee, shall provide the child with all necessary care, . . ."
This matter implicates the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified in Connecticut at General Statutes § 46b-115 et seq. Its jurisdictional provisions are contained in §§ 46b-115k through 46b-115t. In general, a trial court is always required to determine whether it has jurisdiction to make a custody determination under the UCCJEA. See Scott v. Somers, 97 Conn.App. 46, 903 A.2d 663 (2006). This inquiry pertains to the subject matter jurisdiction of the court. In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009). Therefore, the issue must be raised and resolved by the court on its own motion even if the parties do not raise it. Id. Furthermore, "[s]ubject matter jurisdiction . . . cannot be created by consent or waiver . . . Only the enabling legislation . . . can confer subject matter jurisdiction." (Citation omitted; internal quotation marks omitted.) Muller v. Muller, 43 Conn.App. 327, 331-32, 682 A.2d 1089 (1996) (discussing jurisdiction under UCCJA, predecessor legislation to UCCJEA). "Under the UCCJEA, jurisdiction largely depends on the status of the involved individuals on the date of the commencement of a proceeding. [General Statutes] § 46b-115a(5)." Graham v. Graham, Superior Court, judicial district of Middlesex, Docket No. FA 92 065185 (February 6, 2002, Parker, J.).
The court clearly had temporary emergency jurisdiction over the application for an OTC as to the child pursuant to General Statutes § 46b-115n. The first issue, then, is whether the court, by ruling on the OTC, has already made a child custody determination. If it has, its jurisdiction over the neglect proceeding is governed by the "exclusive, continuing jurisdiction" provision of General Statutes § 46b-1151(a). If it has not done so, its jurisdiction depends upon the provisions of General Statutes § 46b-115k. This issue is easily resolved pursuant to the plain language of § 46b-1151(a), which specifies that it applies to the continuing jurisdiction of "a court of this state which has made a child custody determination pursuant to sections 46b-115k to 46b-115m, inclusive . . ." Furthermore, § 46b-1151(b) provides that: "A court of this state which has made a child custody determination but does not have exclusive continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 46b-115k." "Even when a Connecticut trial court does not have exclusive jurisdiction over a child custody matter, it still may maintain concurrent jurisdiction under the UCCJEA pursuant to General Statutes 46b-1151(b), but only `if it has jurisdiction to make an initial determination under section 46b-115k.' General Statutes § 46b-1151." Temlock v. Temlock, 95 Conn.App. 505, 520-21, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006). Accordingly, because the court's OTC ruling was made under § 46b-115n, and not under §§ 46b-115k to 46b-115m, the court's jurisdiction over the neglect proceeding depends on § 46b-115k.
General Statutes § 46b-115n provides in relevant part: "(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and (1) the child has been abandoned, or (2) it is necessary in an emergency to protect the child because the child . . . has been, or is under a threat of being, abused or mistreated ""This law confers on courts in states that do not have jurisdiction to enter or modify permanent custody orders the authority to enter temporary emergency custody orders to protect children at risk of abuse or mistreatment while the parties and courts resolve the emergency." Scott v. Somers, Superior Court, judicial district of New Haven, Docket No. FA 04 4001981 (September 22, 2006, Frazzini, J.).
General Statutes § 46b-1151 provides in relevant part as follows: "(a) Except as otherwise provided in section 46b-115n, a court of this state which has made a child custody determination pursuant to sections 46b-115k to 46b-115m, inclusive, has exclusive, continuing jurisdiction over the determination until: (1) A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state; or (2) a court of this state determines that (A) this state is not the home state of the child, (B) a parent or a person acting as a parent continues to reside in this state but the child no longer has a significant relationship with such parent or person, and (C) substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships."
Section § 46b-115k outlines the basis for a court's jurisdiction over "an initial child custody proceeding." Section 46b-115k(a) "sets forth six jurisdictional bases for determining child custody." Dybowski v. Skiba, Superior Court, judicial district of Fairfield, Docket No. FA 07 4020128 (October 12, 2007, Owens, J.) ( 44 Conn. L. Rptr. 305). Section 46b-115k(b) states that "subsection (a) of this section is the exclusive basis for making a child custody determination by a court of this state." Section 46b-115k(c) adds that "[p]hysical presence of, or personal jurisdiction over, a party or child is not necessary or sufficient to make a child custody determination."
General Statutes § 46b-115k(a) provides: "Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if:
(1) This state is the home state of the child on the date of the commencement of the child custody proceeding;
(2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state;
(3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or a person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;
(4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, that child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships;
(5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or
(6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection."
Under § 46b-115k(a)(1), the court has jurisdiction if Connecticut "is the home state of the child on the date of the commencement of the child custody proceeding." Here, the child is less than six months old. Although she has lived in Connecticut from the time of her birth, she was not living here with a parent or with a person acting as her parent as of the time of the commencement of this action, i.e., the time that the application for the OTC was filed. Furthermore, this state was not her home state within six months of the date this action was commenced and neither of her parents resides in this state. Although the Connecticut appellate courts have not discussed these statutory provisions in similar circumstances, courts in other states have done so. As a Missouri court stated in construing comparable provisions of the Kansas version of the UCCJA, "[t]he requirement that the child `live with' the mother from birth requires more than the mother and newborn child staying at the same hospital for a brief period. Similarly, Kansas is not the `home state' of [the child] simply because [the child] and her mother stayed in a hospital there for two days after [the child's birth]; [the child] has never `lived with' her parents at all. Therefore Kansas is not her home state." State ex rel. R.P. v. Rosen, 966 S.W.2d 292, 300 (Mo.Ct.App. 1998). This court concludes, therefore, that Connecticut is not the child's home state under § 46b-115k(a)(1). Nor does this state have jurisdiction under § 46b-115k(a)(2), which would allow a court to look back six months prior to the date of filing but only if the child no longer lived here.
General Statutes § 46b-115a(7) provides that "`[h]ome state' means the state in which a child lived with a parent or persons 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 less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period." (Emphasis added.) In turn, the term "`person' . . . shall include a public agency"; General Statutes § 46b-115a(12); and the term "`person acting as a parent' means a person, other than a parent, who: (A) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence . . . and (B) has been awarded legal custody by a court or claims a right to legal custody under the laws of this state . . ." General Statutes § 46b-115a(13). The term "`[c]hild custody proceeding' means a proceeding in which legal custody [or] physical custody . . . to a child is an issue. The term includes a proceeding for dissolution of marriage . . . neglect, abuse, dependency, guardianship . . . [and] termination of parental rights . . ." General Statutes § 46b-115a(4). The term "`[c]ommencement' means the filing of the first pleading in a proceeding . . ." General Statutes § 46b-115a(5).
Florida, which is the only other state that might qualify as the child's home state in this action has also adopted the UCCJEA; see Florida Statutes § 61.501 et seq.; and its initial jurisdictional provisions and definitions essentially mirror those of Connecticut. See Florida Statutes §§ 61.154, 61.530. It is apparent that because the child was not born and has not lived in Florida, that state does not qualify as her home state. Therefore, this child does not have a home state.
In this respect, this case is somewhat similar to In re D.S., 217 Ill.2d 306, 840 N.E.2d 1216 (2005), in which the respondent mother, who was a resident of Illinois, gave birth to her baby at a hospital in Indiana, while she was passing through that state on her way to Tennessee. After the hospital became concerned about the mother and notified authorities in Illinois, those authorities brought an emergency shelter and later a neglect action, in which the child was adjudicated neglected and, following a dispositional hearing, committed to the custody of the state child protection agency. Id., 310-12. On appeal, the respondent argued, inter alia, that the trial court lacked subject matter jurisdiction over the action because, at the time that the state of Illinois commenced the proceedings, the child had never lived in that state, and Indiana was her home state. The Supreme Court agreed with the state's counter argument that the child had no home state. In doing so, the court reviewed decisions from several other jurisdictions and agreed with their conclusions that, "[b]y itself, a temporary hospital stay incident to delivery is simply insufficient to confer `home state' jurisdiction under the UCCJEA." Id., 317. The court explained that
the best indication of legislative intent is the statutory language, given its plain and ordinary meaning . . . Section 102(7) [which is identical to § 46b-115a(7)] defines a newborn's home state as the state in which he or she has `lived from birth' with his or her parents. The crucial question, of course, is what did the drafters of the UCCJEA mean by `live,' a verb that can mean many different things depending upon the context. Did they mean . . . nothing more than `to be alive?' See Webster's Third New International Dictionary 1323 (1993). That for the purposes of the UCCJEA, a child `lives' in every jurisdiction in which he or she draws a breath? Or did they mean, as the case law teaches, something more like `to occupy a home?' See [ id.]. We are convinced that they meant the latter. When people speak of where a mother and newborn baby `live,' they do not speak of the maternity ward. Instead, they speak of the place to which the mother and baby return following discharge from the hospital . . .
As importantly, allowing a temporary hospital stay to confer `home state' jurisdiction would undermine the public policy goals of the UCCJEA, which include ensuring that `a custody decree is rendered in that State which can best decide the case in the interest of the child.' . . . 9 U.L.A. § 101, Comment, at 657 (1999). Consider . . . [an Illinois] mother who chooses to deliver her baby in [an Iowa] hospital. In addition to living in Illinois, this mother may work in Illinois, have a husband and other children in Illinois, pay taxes in Illinois, attend church in Illinois, and send her children to Illinois schools. Clearly, if the occasion arose, Illinois would be the state `which can best decide' a case involving the interest of this mother's children. Yet if . . . a mere hospital stay is sufficient to confer home state jurisdiction under the UCCJEA, Iowa would possess exclusive jurisdiction over this newborn, based solely on the location of the obstetrician's practice. Such formalism turns the UCCJEA on its head, conferring jurisdiction on a state with a de minimus interest in the child, to the exclusion of the only state that could conceivably be called the child's `home.' We refuse to endorse this interpretation.
For these reasons, we reject respondent's argument that Indiana is [the child's] home state for the purposes of the UCCJEA. Respondent's own testimony established that she had no connection to Indiana and no intention of remaining there following [the child's] birth. On the contrary, respondent testified that she is a longtime resident of Illinois who, fearful of losing custody of [the child], intended to move to Tennessee. En route, she entered active labor and checked herself into the nearest hospital, which happened to be in . . . Indiana. By itself, a temporary hospital stay in Indiana is simply insufficient to confer `home state' jurisdiction upon that state. As importantly, neither party makes any attempt to argue that any other state possessed `home state' jurisdiction over [the child] when the wardship petition was filed. We therefore agree with the State's assessment that [the child] lacks a `home state' for UCCJEA purposes.
(Citation omitted.) In re D.S., supra, 217 Ill.2d 317-19.
In related circumstances, "courts in several jurisdictions have decided that when a baby who is born in one State, but within days of birth is transported to another State, the baby simply has no home State." Doe v. Baby Girl, 376 S.C. 267, 282, 657 S.E.2d 455 (2008) (construing comparable provision of South Carolina's version of UCCJA). As the court explained in State ex rel. R.P. v. Rosen, supra, 966 S.W.2d 300, Missouri was not the child's home state, although it was where her parents resided and where she had been placed in a foster home by that state's child protection agency, because, "her placement by DFS, with a person acting as a parent, did not make Missouri a state in which she has lived since birth, because she was born in Kansas." See In re E.T., 36 Kan.App.2d 56, 66, 137 P.3d 1035 (2006) (under Kansas UCCJEA provisions (that mirror those of this state), child who was born and remained hospitalized in Missouri for three months while her parents lived in Kansas did not have a home state at time neglect proceeding was filed in Kansas, shortly after her discharge to foster parents in Missouri, because she "had not lived from birth in either Kansas or Missouri with a parent or a person acting as a parent"), overruled on other grounds, 286 Kan. 686, 187 P.3d 594 (2008).
Under the Connecticut statute, this court does not have jurisdiction over this action pursuant to § 46b-115k(3) because, although the child has some connection with this state, neither of her parents has "a significant connection with this state other than mere physical presence and substantial evidence is not available in this state "concerning the child's care, protection, training and personal relationships," as those factors relate to her parents. Florida would not have jurisdiction over this matter under its version of this provision because the child does not have a significant connection with that state. See In re Najad D., 19 Misc.3d 1113, 859 N.Y.S.2d 904 (N.Y.Fam.Ct. 2008) (New York court does not have jurisdiction under comparable provision of state UCCJEA, although child's parents have significant connections to that state, because "she has never been in New York State and there are no relevant records predating the filing of this petition to be found in the state").
For the same reason, and because no other state is the home state of the child and has declined to exercise jurisdiction, this court does not have jurisdiction over the action under § 46b-115a(4). "[U]nder § 46b-115k(a)(4), a Connecticut court can address the issue of the child and parent's `significant connection with this state . . .' if and only if a child's home state has declined jurisdiction for the reason expressed in the subsection." Mathers v. Anglero, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 07 400771 (October 23, 2007, Rubinow, J.) Again because no other state has declined to exercise jurisdiction over the child, this court does not have jurisdiction over the action under § 46b-115k(5). Finally, however, the court does have jurisdiction over the action under the "catch all" provision of § 46b-115k(6) in that "no court of any other state would have jurisdiction under subdivision (1) to (5) . . . of this subsection."
Even if the court does have jurisdiction over this action pursuant to § 46b-115k(6), it "may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon a motion of a party, the guardian ad litem for the child or the attorney for the child, the court's own motion or a request of another court." General Statutes § 46b-115q. In turn, "General Statutes § 46b-115q(b) provides a list of factors that Connecticut courts should consider in determining whether a Connecticut court should have jurisdiction over a custody matter." Mayer v. Barrow, Superior Court, judicial district of Waterbury, Docket No. FA 09 4021046 (February 26, 2010, Buzzuto, J.). "After considering these factors the `home state' may conclude it is not the appropriate forum for resolution of custody issues in a particular matter. In that instance, the court may relinquish jurisdiction to another state's court. [General Statutes] § 46b-115q. In addition, "Connecticut courts communicate with courts in other states in instances when it is unclear which court should have jurisdiction." Mayer v. Barrow, supra, Superior Court, Docket No. FA 09 4021046. See General Statutes § 46b-115h(a).
General Statutes § 46b-115q(b) provides: "In determining whether a court of this state is an inconvenient forum and that it is more appropriate for a court of another state to exercise jurisdiction, the court shall allow the parties to submit information and shall consider all relevant factors including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation."
Furthermore, the statute provides that "[i]f a court of this state determines that it is an inconvenient forum, and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper." See Lord v. Lord, Superior Court, Judicial District of Fairfield, Docket No. FA 97 0348367, (September 14, 2001, Sheedy, J.) (upon determining that Connecticut should decline jurisdiction under § 46b-115q, court ordered that "these proceedings are stayed upon the condition [that] a child custody proceeding is commenced in New York within forty-five (45) days of this decision. The failure of either party to commence such action shall return the matter to this courthouse").
The enforcement provisions of the UCCJEA are codified in Connecticut at § 46b-115n et seq., and in Florida at § 61.524 et seq. As the Arkansas Supreme Court explained in referring to that state's version of the UCCJEA, the child protection agency of one state does not have the authority to act upon an order from a court of another state until "the foreign order is registered [in Arkansas] and notice is given . . . Enforcement of foreign child-custody determinations is not a self-help process." Arkansas Dept. of Human Services v. Cox, 349 Ark. 205, 218 82 S.W.3d 806 (2002).
The UCCJEA streamlines enforcement of foreign child-custody determinations in that they will be enforced in another state if, upon notice, the affected persons do not challenge the jurisdiction of the rendering court or, where they do, but the court in the enforcing state determines jurisdiction was proper. The UCCJEA does not dispense with proceedings to enforce the order in the state where it is to be enforced.
It is not up to DHS [the Arkansas child protection agency] to decide what orders it will follow and what orders it will ignore. Further it is up to Florida [the state that issued the order in question] to register and enforce the order. They might well appropriately seek DHS's help, but the process must be followed or we have chaos and acts not subject to the required supervision of the courts . . .
Id., 220.
Accordingly, the parties are directed to notify the court of whether and when a child protection proceeding will be instituted in Florida and to provide documentation of the willingness and authority of a Florida child protection agency to accept commitment of the child from a Connecticut court.
General Statutes § 46b-129(j) provides, in pertinent part, as follows: "Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may vest such child's or youth's legal guardianship in any . . . public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths . . ." (Emphasis added.)
IT IS HEREBY SO ORDERED.