February 01, 2013

Texas Retained Home State Jurisdiction Over Abused Children

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re NC, 2013 WL 93115 (Wyo.).

For children abused in Texas and taken by grandmother to Wyoming, only emergency jurisdiction was available to Wyoming court. Texas had not ceded home state jurisdiction, although no custody orders had yet been issued. Emergency jurisdiction is time limited to deal with emergencies only and further dispositional orders exceeded authority.

A mother lived in Texas with her two daughters, ages three and four. The mother reported to her sister and mother that she believed her boyfriend had bitten her children. Although the mother moved in with her sister for a time to be apart from the boyfriend, she eventually reconciled. Her mother, the grandmother made a trip from her home in Wyoming to Texas to check on the girls. She reported at trial that she observed new bite marks at that time. With the mother’s permission, she took the girls to Wyoming.

After returning to Wyoming, the grandmother contacted the child welfare agency. The agency in turn contacted law enforcement. A Wyoming police detective contacted Texas police and learned the children had been interviewed, but stated a former unnamed neighborhood boy had bitten them. While the Texas detective reported that he did not find their statements credible, he did not have enough evidence to move forward with any charges.

The county attorney filed neglect petitions and a shelter care hearing was held. At that hearing, the mother, her boyfriend, and the father participated by phone from Texas. The mother’s attorney argued that Wyoming did not have subject matter jurisdiction because the children were still residents of Texas, the incident occurred there, and there was a custody case pending in Texas. The district court sheltered the children without addressing the jurisdictional argument, awarding custody to the agency with a placement with the grandmother.

At a motion hearing, the district court addressed the jurisdictional argument for the first time indicating that while it did recognize that Texas was the home state, it did not have information about which Texas court would be hearing the case, or contact from a judge indicating his or her belief that the case should be heard there. Based on that, the district court indicated it needed to err on the side of caution and denied the motion to dismiss. The children were adjudicated, placed in legal care of the agency, with the grandmother as their placement.

The mother and her boyfriend appealed to the Wyoming Supreme Court.

On appeal the court noted that the district court would have initial jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) if: it was the child’s home state at the time of petition (where the child lived for six months before the petition was filed); or the child was absent from the state, but a parent or someone acting as a parent still lived in the state. Otherwise, the district could only take initial jurisdiction if there was no home state as defined by the UCCJEA and the parent or someone acting as a parent had significant connections to the state or if substantial evidence was available in the state concerning the child. Once initial jurisdiction was established, it continued until the home state declined or otherwise ceded its jurisdiction.

The Wyoming Supreme Court held that it was clear that Texas had initial jurisdiction and had not ceded it. Thus the district court erred in finding jurisdiction under the Child Protection Act.

The district court could however, have emergency jurisdiction under the UCCJEA. To take emergency jurisdiction, all that was required was that the child be in the state and be at risk of abuse or neglect if jurisdiction is not taken. The evidence presented at the shelter and adjudicatory hearings, including the testimony of the mother, the photographs of the bites, and the statements of the physician, all supported the court’s finding of abuse by the boyfriend and neglect by the mother.

Thus, the court had sufficient evidence for emergency jurisdiction. However, the dispositional orders requiring participation of the parties in services went beyond the authority of emergency jurisdiction which was time limited to protect the child while the home state court’s orders were pending.

The Wyoming Supreme Court remanded the case with instructions for the district court to contact the Texas court to arrange to take over jurisdiction of the case.