In re Interest of S.L.

61 Kan.App.2d 276

503 P.3d 244

In the INTEREST OF S.L., a Minor Child.

No. 123,535

Court of Appeals of Kansas.

Opinion filed November 12, 2021.

Valerie L. Moore and Amy Vinton, of Lenexa, for appellants A.L. and M.W.

Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, PA, of Overland Park, for appellees E.L. and J.H.

Before Green, P.J., Cline, J., and Burgess, S.J.

Green, J.:

S.L. is a minor with dual citizenship in the Netherlands and the United States. S.L. lived with E.L. (Father) and J.H. (Stepmother) until March 2019, when Father sent S.L. to stay with his sister A.L. (Aunt) and her partner M.W. (Uncle) for spring break. Aunt and Uncle filed accusations of child abuse with a child protective service in the Netherlands. A Dutch court suspended Father and Stepmother's parental rights. The Dutch court took S.L. into foster care, assigning residential placement with Aunt and Uncle. Father and Stepmother filed a "Petition for Issuance of Child Abduction Prevention Measures Under the Uniform Child Abduction [Prevention] Act (UCAPA)" in Johnson County, Kansas. The trial court determined that it had jurisdiction over S.L. and ordered her returned to Father and Stepmother in Kansas. Aunt and Uncle appeal, arguing that the trial court lacked subject matter and personal jurisdiction. Alternatively, Aunt and Uncle argue that the trial court erred in ordering S.L. returned to Kansas. Because the Dutch courts properly refused to return S.L. to Kansas, we reverse the decision of the Johnson County District Court, vacate the district court orders, and remand with directions that the district court give comity to the Hague Court of Appeals' decision.

FACTS

S.L. was born in New York, New York, in July 2006. S.L.'s mother died in September 2008 in New York, New York. Father married Stepmother in December 2008. Then, S.L., Father, and Stepmother lived in Groenlo, Netherlands, for slightly more than a year and a half, from December 2008 to July 2010.

In May 2011, the District Court of Amsterdam granted parental authority to Stepmother, assigning joint parental authority to her and Father. From August 2013 until March 2019, S.L. lived with Father and Stepmother at the following locations:

• August 2013–July 2015: Overland Park, Kansas

• August 2015–April 2016: New York, New York

• (Lived with paternal grandparents May 2016–August 2016: Groenlo, Netherlands)

• August 2016–July 2017: Overland Park, Kansas

• August 2017–August 2018: New York, New York

• September 2018–March 2019: Orlando, Florida

In February 2019, S.L., Father, and Stepmother were living in Orlando, Florida, and S.L. was enrolled at Southwest Middle School in Orange County, Florida. In March 2019, S.L. went to the Netherlands to spend her school spring break with Aunt and Uncle. S.L. arrived in Amsterdam on March 14, 2019, with a return ticket for March 28, 2019.

The day after S.L. arrived in the Netherlands, March 15, 2019, Stepmother gave Aunt and Uncle a power of attorney to make practical decisions about S.L. during her stay in the Netherlands. That power of attorney expired on August 31, 2019, and was not renewed or extended. But Father and Stepmother spoke with Aunt and Uncle sometime during S.L.'s stay and they agreed that S.L. would not return on the date planned. Instead, she would stay in the Netherlands as late as the end of July so that she could start the new school year in August 2019.

Aunt and Uncle registered S.L. at their address on April 30, 2019, and enrolled S.L. in school in the Netherlands. Aunt and Uncle filed accusations with the Council for Child Protective Services in Arnhem, the Netherlands (Council), accusing Father and Stepmother of child abuse, neglect, and abandonment. On June 13, 2019, the Council petitioned the Gelderland District Court to place S.L. under supervision. After a contested hearing on July 5, 2019, the children's judge authorized Child Protection Gelderland (Child Protection) to supervise S.L. from July 5, 2019, to July 5, 2020. Child Protection then assigned custodial placement of S.L. to Aunt and Uncle. Father and Stepmother appealed the order from the Gelderland District Court to the Arnhem-Leeuwarden Court of Appeals.

On November 6, 2019, Father and Stepmother also filed a petition with the Court of the Hague for the return of S.L. under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1988 WL 411501 (the 1980 Hague Convention). This filing added a second track of litigation, parallel to the proceedings which began in the Gelderland District Court.

On December 5, 2019, the Arnhem-Leeuwarden Court of Appeals issued its decision reversing the Gelderland District Court's order placing S.L. with Child Protection. The appellate court ruled that the lower Dutch court did not have jurisdiction to consider the Council's request to place S.L. with Child Protection. The appellate court also ruled that the United States was S.L.'s "habitual residence" under applicable European Union law, Brussels II-bis. And the appellate court ruled that Dutch law did not give the lower court jurisdiction because S.L.'s usual residence was the United States and no exceptions existed to invoke jurisdiction. In short, the appellate court held that the lower court did not have jurisdiction under international treaty, European Union law, or Dutch law. Thus, the appellate court "destroy[ed] the court order of the children's judge at the court in Gelderland." As a result, the Council's supervision of S.L. ended on December 5, 2019.

Immediately, Stepmother flew to the Netherlands to retrieve S.L., with an airplane ticket for S.L. to make the return trip. Stepmother spent December 10, 2019, helping S.L. to pack her belongings. The family had a farewell party for S.L. that night.

But on December 9, 2019, the Council filed a request with the Gelderland District Court for the provisional supervision and authorization for out-of-home placement of S.L. Ruling from the bench, the Gelderland District Court declared it lacked jurisdiction to hear the Council's request, in keeping with the appellate court decision from just days earlier on December 5, 2019.

The next day, December 10, 2019, the Council again requested that the district court temporarily place S.L. under supervision and allow Child Protection to decide residential placement. The Council added as a new basis for its request that Stepmother intended to take S.L. back to the United States against her will on December 11, 2019, without safety guarantees or a child protection plan. This time, the Gelderland District Court granted Child Protection supervision, authorizing residential placement of S.L. S.L. did not return to the United States with Stepmother.

On December 20, 2019, Stepmother requested two temporary protection from abuse orders in Johnson County, Kansas, on behalf of S.L. The trial court granted the petitions, issuing one order that Uncle was to have no contact with S.L. and another order prohibiting Aunt from having contact with S.L. At the time, S.L. was living with Aunt and Uncle in the Netherlands and the record does not make clear if the Johnson County protection from abuse orders had any practical effect. On one order, the trial court determined that it had child custody jurisdiction because Kansas is the home state. On the other order, the trial court was silent on the jurisdiction issue.

On January 6, 2020, the Gelderland District Court upheld its order from December 10, 2019, which placed S.L. in foster care.

On January 30, 2020, the Court of the Hague denied Father and Stepmother's request to return S.L. to the United States. The Court of the Hague confined itself to the narrow question of whether S.L. had been abducted within the meaning of Article 3 of the 1980 Hague Convention. Under Article 3, an abduction occurs when there is either an unauthorized transfer or an unauthorized detention. The court easily concluded that there was no unauthorized transfer of S.L. because Father and Stepmother sent her to the Netherlands and agreed to the trip. The court then determined that Child Protection's supervision of S.L. was not an unauthorized detention because Child Protection acted under court order. The only period during which Child Protection was not authorized to detain S.L. by court order was from December 5, 2019, to December 10, 2019. The Court of the Hague determined that S.L. was not in fact detained at all during that time but was available to fly back to the United States with Stepmother and nearly did.

And the Court of the Hague ruled that the December 10, 2019 Gelderland District Court order did not conflict with the temporary protection from abuse orders from the Johnson County District Court entered on December 23, 2019. The Court of the Hague determined that the orders did not cover the same ground because the protection of abuse orders did not determine custody:

"[T]he court order of the US court in Kansas is not aimed at taking child protection measures for [S.L.] in America. This order does not share the same idea as where the [temporary] supervision and custodial placement is aimed at, namely to protect [S.L.] in connection with a serious threat to her development."

After the Court of the Hague ruled that there had been no abduction under Article 3 of the 1980 Hague Convention, it addressed residential placement of S.L. and child protection measures. The Court of the Hague "consider[ed] that not this court, but the court in Gelderland or the Courthouse of Arnhem-Leeuwarden has the authority to decide on the parents' requests." Father and Stepmother appealed.

But also, on February 10, 2020, Father and Stepmother filed the petition at issue in this case. Their "Petition for Issuance of Child Abduction Prevention Measures Under the Uniform Child Abduction [Prevention] Act (UCAPA)" requested that the Johnson County District Court issue a warrant to take immediate physical custody of S.L. Father and Stepmother...