Dep't of Human Servs. v. M. P. (In re J. P.)

328 Or.App. 502

537 P.3d 593

In the MATTER OF J. P., a Child.

Department of Human Services, Petitioner-Respondent,

v.M. P. and S. F., Appellants.

A179157

Court of Appeals of Oregon.

Argued and Submitted January 25, 2023

October 4, 2023

Tiffany Keast, Deputy Public Defender, argued the cause for appellant M. P. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

George W. Kelly filed the brief for appellant S. F.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

JACQUOT, J.

In this juvenile dependency case, 11-year-old J's parents moved to dismiss the case at the close of the jurisdictional hearing on the grounds that the court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The juvenile court denied the motion and entered a judgment of jurisdiction. Mother and father separately appeal, each raising three assignments of error. First, both parents appeal the juvenile court's denial of the motion to dismiss. Father also assigns error to the court's decisions to appoint and retain a guardian ad litem for him, and mother also assigns error to the court's entry of an order requiring her to undergo a psychological evaluation, and the court's decision that dependency jurisdiction was warranted.

As explained below, whether Oregon courts have home-state initial custody jurisdiction under the UCCJEA depends on whether Oregon was the child's home state at "the date of the commencement of the proceeding," ORS 109.741(1)(a),¹ i.e. , when the "first pleading" was filed in the proceeding, ORS 109.704(5). The juvenile court concluded that the relevant proceeding commenced when the Department of Human Services (DHS) filed an ex parte declaration in support of a protective custody order in April 2021, at which time Oregon was J's home state. Consequently, the court concluded, Oregon had home-state jurisdiction under the UCCJEA to determine the subsequent dependency action. Parents argue that that was error, because the dependency proceeding commenced when the dependency petition was filed in March 2022. It is undisputed that, in March 2022, J had not lived in Oregon for the last nine months. Parents contend that the protective custody declaration and order did not create exclusive continuing jurisdiction for Oregon, and that Oregon did not have home-state initial custody jurisdiction under the UCCJEA when the custody proceedings commenced in Oregon in March 2022.

As explained below, we conclude that the relevant proceeding is the juvenile dependency proceeding, and that proceeding commenced in March 2022, when the petition was filed and J was removed from his mother's care. Consequently, the court erred in finding that it had home-state jurisdiction under the UCCJEA, because Oregon was not J's home state in March 2022. We remand for the juvenile court to determine if there was another basis for the Oregon courts to take jurisdiction under the UCCJEA and, if not, to dismiss the petition.

On father's second assignment of error, which is largely unpreserved—father said in the juvenile court only that he did not need a guardian ad litem —we affirm the trial court's decision to initially appoint a guardian ad litem because any error is not plain. It is not beyond dispute on the face of the record that the trial court erred. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381, 823 P.2d 956 (1991) ; State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990) (to qualify as plain, the error must be "obvious, not reasonably in dispute").

Having determined that remand is necessary on each parent's first assignment of error and that it is not clear that there was any path to UCCJEA jurisdiction over J, we do not reach father's third assignment of error or mother's other two assignments of error. If, on remand, the juvenile court determines that there is jurisdiction and the matter is litigated, parents may appeal again and renew their other assignments of error. We note that if requested, the juvenile court must evaluate the continuing need for a guardian ad litem for father under ORS 419B.237(2)(a) rather than rely on the past appointment.

I. LEGAL BACKGROUND

A. The UCCJEA Generally

To provide the necessary framework for the facts of this case, we begin with a brief overview of the UCCJEA and the protective custody order scheme in Oregon.

The UCCJEA is "a uniform act governing child custody proceedings and child custody determinations when multiple states are implicated" that has been adopted in almost every state. Dept. of Human Services v. J. S. , 368 Or. 516, 523, 495 P.3d 1245 (2021). Oregon adopted the UCCJEA in 1999. Id. (citing Or. Laws. 1999, ch 649). It is codified at ORS 109.701 to 109.834. Id. The Supreme Court recently explained that

"the purposes of the UCCJEA are, among other things, to avoid jurisdictional competition and conflict with other states’ courts in child custody matters [and] to promote cooperation with the courts of other states so that custody decrees are rendered in the state that can best decide the case in the interest of the child[.]"

Id. (citing UCCJEA § 101 comment, 9 ULA 649, 657 (1999)).

Under the UCCJEA, to make an initial custody determination for a particular child, a court must have initial custody jurisdiction. Id. at 525, 495 P.3d 1245 (citing ORS 109.741) ; see also UCCJEA § 201, 9 ULA at 671 (model act governing initial child-custody jurisdiction); UCCJEA § 102(8), 9 ULA at 658 (defining "initial determination" as "the first child-custody determination concerning a particular child"); ORS 109.704(8) (applying the same definition of "initial determination" as UCCJEA § 102(8) ). That court then generally has "exclusive, continuing jurisdiction" over custody issues involving the child until and unless certain events occur. ORS 109.744.

Pursuant to ORS 109.741(1), a state may have initial custody jurisdiction under four non-emergency paths or one emergency exception. J. S. , 368 Or. at 525, 495 P.3d 1245. The first path to initial custody jurisdiction, "home-state jurisdiction"—the path to jurisdiction that is at issue in this case—is prioritized: Any state that is not the child's home state will defer to the home state, if there is one, when taking jurisdiction over a child custody dispute. Id. at 524-25, 495 P.3d 1245 ; ORS 109.741(1)(a) ; UCCJEA § 201 comment, 9 ULA at 672 ("The jurisdiction of the home State has been prioritized over other jurisdictional bases."); see also ORS 109.744(1) ("Except as otherwise provided in ORS 109.751, a court of this state that has made a child custody determination consistent with ORS 109.741 or 109.747 has exclusive, continuing jurisdiction over the determination until" certain other events occur.).

Home-state initial custody jurisdiction under Oregon's codification of the UCCJEA is governed by ORS 109.741, which provides that Oregon courts have home-state initial custody jurisdiction only if

"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 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[.]"

ORS 109.741(1)(a). "Commencement" of a proceeding is defined as "the filing of the first pleading in a proceeding." ORS 109.704(5).

"If Oregon is not the child's home state, then the court must determine if it is permissible to proceed along one of the other three pathways to jurisdiction set out in ORS 109.741, [described] as ‘significant-connection,’ ‘more-appropriate-forum,’ and ‘last-resort’ jurisdiction." J. S. , 368 Or. at 525, 495 P.3d 1245 (internal citation omitted); ORS 109.741(1)(b) - (d). ORS 109.741(1) additionally provides for an exception called temporary emergency jurisdiction. Temporary emergency jurisdiction permits a court that does not have initial custody jurisdiction to make a child custody determination if the child is present in the state and either the child has been abandoned or it is necessary in an emergency to protect the child from mistreatment or abuse.

J. S. , 368 Or. at 525-26, 495 P.3d 1245 ; ORS 109.741(1) (prefacing the requirements for initial custody jurisdiction with the statement, "[e ]xcept as otherwise provided in ORS 109.751 " (emphasis added)); ORS 109.751(1) (statutory basis for temporary emergency jurisdiction); UCCJEA § 204, 9 ULA at 676 (model act for temporary emergency jurisdiction).

Notice is a critical component of an initial child custody determination. An initial child custody determination is binding and conclusive on all who have been served or submitted to jurisdiction, and had an opportunity to be heard, unless and until modified. UCCJEA § 106, 9 ULA at 663. Notice must be given, and the act allows multiple forms of service for people outside the state. UCCJEA § 108, 9 ULA at 664.

Moreover, UCCJEA § 205 provides, in part:

"(a) Before a child-custody determination is made under this [Act], notice and an opportunity to be heard in accordance with the standards of Section 108 must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

"(b) This [Act] does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard."

9 ULA at 679 (brackets in original); see also ORS 109.754(2) (same).

After a court has made a qualifying initial custody determination involving a child, courts in that state will have "exclusive continuing jurisdiction" to hear all future matters...