Joseph Thomas v. Arkansas Department of Human Services et al.

Annotate this Case
ca04-648

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

JOSEPH THOMAS

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES, ET AL.

APPELLEES

CA04-648

April 6, 2005

APPEAL FROM THE MARION COUNTY CIRCUIT COURT

[NO. J 03-92-2]

HON. GARY BERT ISBELL,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this termination-of-parental-rights case is the father of S. L. The child was born in Illinois on August 11, 2002, and lived in that State until August 2003, when appellant and the child's mother (Brooke Lofton) relocated to Arkansas. Approximately four months later, on December 1, 2003, the Arkansas Department of Human Services (ADHS) obtained an order of emergency custody based on allegations that the mother was physically abusing the child. On December 10, 2003, the issue of jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) was raised. A hearing to decide this issue was set for February 11, 2004. In the interim, the child's maternal grandparents, who reside in Illinois, were permitted to intervene over appellant's objection. On February 10, 2004, the maternal grandparents filed a petition for guardianship in Illinois and were soon thereafter appointed as the child's temporary guardians. On February 23, 2004, the trial court found that Arkansas was not the home state of the child under the UCCJEA and that Illinois was the only State with jurisdiction to make an initial child-custody determination, and transferred the case to Tazewell County, Illinois. On appeal, appellant argues that the trial

court erred in transferring the case to Illinois based upon the UCCJEA and that such transfer was contrary to the child's best interest; in permitting the maternal grandparents to intervene; and in failing to consider all of the factors relevant to the best interest of the minor. We find no error, and we affirm.

We first address the question of whether the trial court erred in finding that it lacked jurisdiction under the UCCJEA. The relevant statute, Ark. Code Ann. § 9-19-201 (Repl. 2002), provides:

9-19-201. Initial child-custody jurisdiction.

(a) Except as otherwise provided in § 9-19-204, a court of this state has jurisdiction to make an initial child-custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 9-19-207 or § 9-19-208, and:

(A) the child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under subdivision (a)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 9-19-207 or § 9-19-208; or

(4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3) of this section.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

The statutory analysis hinges on a determination of the "home state" of the child. As defined by Ark. Code Ann. § 9-19-102(7), the child's "home state" is "the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding." Here, it is undisputed that the child did not live in Arkansas for six consecutive months prior to the commencement of the Arkansas abuse proceeding in December 2003,1 and that the child lived with Brooke and the maternal grandparents in the grandparents' home in Pekin, Illinois, from his birth on August 11, 2002, until August 2003, when Brooke moved to Arkansas with the child. There was, in addition, evidence that Brooke was of limited mental capacity and that the maternal grandparents had acted as S. L.'s parents by providing all of the child's care and living needs while he resided with them in Illinois.

Appellant asserts that the UCCJEA does not apply because the child and parents all resided in Arkansas. However, the physical presence of a party or a child is neither necessary nor sufficient to make a child-custody determination under the UCCJEA. Ark. Code Ann. § 9-19-201(c). The grandparents filed a petition for guardianship in Illinois during the pendency of the proceeding, and the UCCJEA is the exclusive method for determining the proper forum in child-custody proceedings involving other jurisdictions. Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003). Appellant also argues that the UCCJEA should not apply as a matter of public policy and that the trial court erred in failing to consider the child's best interests in determining jurisdiction. This argument would be best addressed to the legislature. The Arkansas Supreme Court has consistently held that the determination of public policy lies almost exclusively with the legislature, and that the legislature's determination of public policy, as expressed by statue, will not be interfered with by the courts in the absence of palpable errors. See, e.g., State Farm Mutual Automobile Insurance Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). Furthermore, the UCCJEA completely eliminates a determination of "best interests" of a child from the jurisdictional inquiry in favor of a more efficient and "bright line" jurisdictional rule that specifically seeks to avoid a judicial analysis of substantive issues in the determination of jurisdiction. Welch-Doden v. Roberts, 202 Ariz. 201, 42 P.3d 1166 (Ariz. App. 2002); see People ex rel. A.J.C., 88 P.3d 599 (Colo. 2004).

Under these facts, Arkansas is not the child's home state as defined by Ark. Code Ann. § 9-19-102(7), and Illinois properly has jurisdiction under 9-19-201(a)(1) because it was the child's home state within six months before the commencement of the proceeding and the maternal grandparents, who acted as parents to the child, continue to live there. Consequently, we hold that the trial court correctly concluded that Arkansas lacked jurisdiction to make an initial child-custody determination in this case. Because we hold that the trial court was correct in dismissing the case for lack of jurisdiction, we will not address appellant's remaining points on appeal on the merits. Greenhough v. Goforth, supra.

Affirmed.

Robbins and Neal, JJ., agree.

1 Appellant argues that we should consider the child's time in utero in determining the six-month period. However, in Arkansas Department of Human Services v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002), the Arkansas Supreme Court squarely held that the UCCJEA does not apply to unborn infants, and therefore the fact that the child in that case may have been conceived in Florida was of no impact in the analysis of jurisdiction.

The following subsections of 9-19-102 are relevant to the question of whether the current abuse case is an initial child-custody proceeding to which the UCCJEA must apply:

(3) "Child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) "Child-custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subchapter 3 of this chapter.

(Emphasis added.)