J-S22011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.R. & M.S.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellants              :
                                               :
                                               :
                  v.                           :
                                               :
                                               :
    J.W. & K.S.                                :   No. 8 MDA 2020
                  v.                           :
                                               :
                                               :
    HAMILTON CO. DEPT. OF JOBS AND             :
    FAMILY SERVICES                            :

               Appeal from the Order Entered December 3, 2019
     In the Court of Common Pleas of Union County Civil Division at No(s):
                                   19-815


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                   FILED MAY 22, 2020

        Appellants, J.R. and M.S. (collectively, “Grandparents”), appeal from the

December 3, 2019 order dismissing their complaint for custody and petition

for emergency special relief. We affirm.

        The facts and procedural history of this case are as follows.    C.S.1.,

C.S.2., M.S., N.S., and K.S. (collectively, the “Children”), all of which have

special medical and developmental needs, lived with their parents, J.W. and

K.S. (collectively, the “Parents”), in Hamilton County, Ohio. In 2016, Hamilton

County Department of Job and Family Services (“HCJFS”) removed the

Children after their brother, A.S., died from injuries allegedly sustained while
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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in Parents’ care. Thereafter, HCJFS filed a complaint for dependency in the

Hamilton County Court of Common Pleas of Ohio and the court issued an order

vesting interim custody of the Children with HCJFS.

      Initially, HCJFS placed the Children in “various foster and institutional

placements.” Trial Court Opinion, 1/7/20, at *1 (un-paginated). In 2018,

however, HCJFS placed the eldest child, K.S., with Grandparents, who live in

Union County, Pennsylvania. Id. HCJFS placed the other four children in the

care of M.S. and L.S. (“Foster Parents”), who live in Schuler Falls, New York.

Id.

      On November 12, 2019, Grandparents filed a complaint for custody in

the Court of Common Pleas of Union County, seeking primary physical and

shared legal custody of the Children.        Then, on November 15, 2019,

Grandparents filed a petition for emergency special relief, seeking temporary

emergency physical and legal custody of the Children.         In Grandparents’

petition, they claimed that the Foster Parents failed to adequately care for

C.S.1., C.S.2., M.S., and N.S. in light of their special medical and

developmental needs. Grandparents included multiple examples of alleged

misconduct, including a claim that, as a result of the Foster Parents’ failures,

C.S.2. was hospitalized at Children’s Hospital of Philadelphia (“CHOP”) with

liver failure.

      “Pursuant to the requirements of the Uniform Child Custody Jurisdiction

and Enforcement Act [(“UCCJEA”), 23 Pa.C.S.A. § 5401 et seq., the trial] court

conducted an[] on the record conference with the Honorable Sylvia Hendon of

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the Hamilton County, Ohio court system.” Id. at *2. During the conference,

the trial court was informed that the Children were “all in the custody of

[HCJFS]” because the “[i]ssues concerning the dependency of the [C]hildren

and their placement [were still] pending in the appellate courts of the state of

Ohio.” Id. at *1-2. In addition, the trial court learned that “[o]ne child [was]

placed with [Grandparents]” and the “other four children were placed in [a]

foster home . . . in New York.”            Id. at *2.   Accordingly, the trial court

determined that it lacked jurisdiction and subsequently entered an order

dismissing Grandparents’ complaint for custody and petition for emergency

special relief. Trial Court Order, 12/3/19, at 1. This timely appeal followed.1

       Grandparents raise the following issues on appeal:

        I.    Did the trial court err or abuse its discretion by finding
              that it did not have jurisdiction concerning any of the
              [C]hildren?

       II.    Did the trial court err or abuse its discretion by
              dismissing [Grandparents’] . . . petition for emergency
              special relief?


Grandparents’ Brief at 4.

       “In evaluating whether a court of this Commonwealth may [exercise

jurisdiction over] a custody determination made by a court of another state,

we look to the UCCJEA.”         A.L.-S. v. B.S., 117 A.3d 352, 356 (Pa. Super.
____________________________________________


1 Grandparents filed a notice of appeal and a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) on December 23,
2019. The trial court issued its opinion pursuant to Pa.R.A.P. 1925(a) on
January 7, 2020.


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2015).   “The purpose of the UCCJEA is to avoid jurisdictional competition,

promote cooperation between courts, deter the abduction of children, avoid

[the relitigation of] custody decisions of other states, and facilitate the

enforcement of custody orders of other states.” Id.

     A court's decision to exercise or decline jurisdiction is subject to
     an abuse of discretion standard of review and will not be disturbed
     absent an abuse of that discretion. Under Pennsylvania law, an
     abuse of discretion occurs when the court has overridden or
     misapplied the law, when its judgment is manifestly unreasonable,
     or when there is insufficient evidence of record to support the
     court's findings.    An abuse of discretion requires clear and
     convincing evidence that the trial court misapplied the law or
     failed to follow proper legal procedures.

Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005), quoting Lucas v.

Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted).

     First, Grandparents allege that the trial court erred in dismissing their

complaint for custody because, pursuant to 23 Pa.C.S.A. § 5423, the trial

court had jurisdiction to modify the custody order issued by the Hamilton

County Court of Common Pleas of Ohio.

     Section 5423 provides:

     Except as otherwise provided in section 5424 (relating to
     temporary emergency jurisdiction), a court of this Commonwealth
     may not modify a child custody determination made by a court of
     another state unless a court of this Commonwealth has jurisdiction
     to make an initial determination under section 5421(a)(1) or (2)
     (relating to initial child custody jurisdiction) and:

         (1) the court of the other state determines it no longer has
         exclusive, continuing jurisdiction under section 5422
         (relating to exclusive, continuing jurisdiction) or that a court



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         of this Commonwealth would be a more convenient forum
         under section 5427 (relating to inconvenient forum); or

         (2) a court of this Commonwealth or a court of the other
         state determines that the child, the child's parents and any
         person acting as a parent do not presently reside in the
         other state.

23 Pa.C.S.A. § 5423. Thus, to modify another state’s custody determination,

a court of this Commonwealth must first determine whether it would have

jurisdiction to make an initial determination over the custody matter pursuant

to 23 Pa.C.S.A. § 5421. Section 5421 provides, in relevant part:

      (a) General Rule.—Except as otherwise provided in section 5424
      (relating to temporary emergency jurisdiction), a court of this
      Commonwealth has jurisdiction to make an initial child custody
      determination only if:

         (1) This Commonwealth 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 Commonwealth but a parent or person acting as a
         parent continues to live in this Commonwealth;

23 Pa.C.S. § 5421(a)(1). A child’s “home state” is defined as:

      The State in which a child lived with a parent or a person acting
      as a parent for at least six consecutive months immediately before
      the commencement of a child custody proceeding. …A period of
      temporary absence of any of the mentioned persons is part of the
      period.

23 Pa.C.S.A. § 5402.

      Herein, Grandparents assert that the trial court could modify Hamilton

County’s custody order because K.S. has lived in Pennsylvania since 2018. In

Grandparents’ complaint for custody, however, they sought primary physical


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and shared legal custody of all the Children. Accordingly, in order for the trial

court to exercise jurisdiction over the claims raised in Grandparents’ complaint

for custody, C.S.1., C.S.2., M.S., and N.S. (in addition to K.S.) needed to live

in the Commonwealth “for at least six consecutive months immediately before

the commencement of [the] child custody proceeding.” 23 Pa.C.S.A. § 5402.

C.S.1., C.S.2., M.S., and N.S. have never lived in the Commonwealth. Indeed,

since 2018, they have lived in Schuler Falls, New York with the Foster Parents.

Accordingly, the Commonwealth is not their home state. As such, the trial

court correctly determined that it lacked jurisdiction to modify Hamilton

County’s custody order and dismissed Grandparents’ complaint for custody.

      Next, we address Grandparents’ claim that the trial court erred in

dismissing their petition for emergency special relief.    Section 5424 of the

UCCJEA outlines a trial court’s authority to assume temporary emergency

jurisdiction. It provides, in relevant part, that

      [a] court of this Commonwealth has temporary emergency
      jurisdiction if the child is present in this Commonwealth and the
      child has been abandoned or it is necessary in an emergency to
      protect the child because the child or a sibling or parent of the
      child is subjected to or threatened with mistreatment or abuse.

23 Pa.C.S.A. § 5424(a).

      In Grandparents’ petition for emergency special relief, they sought

emergency custody of C.S.1., C.S.2., M.S., and N.S. and alleged that the

Foster Parents did not adequately care for them.       Grandparents, however,

failed to assert that C.S.1., M.S., and N.S. were present in the Commonwealth


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when they filed the petition. Indeed, Grandparents sought to invoke the trial

court’s jurisdiction by alleging that

      [] Grandparents, K.S., and [] [P]arents all reside in Union County,
      Pennsylvania, a custody action has already been commenced in
      Union County, and C.S.[2.] is physically present in Pennsylvania
      at CHOP.

Grandparents’ Petition for Emergency Special Relief, 11/15/19, at ¶ 14. The

fact that C.S.1., M.S. and N.S. were not present in the Commonwealth when

Grandparents filed their petition is fatal to their claim.   See 23 Pa.C.S.A.

§ 5424(a) (“[a] court of this Commonwealth has temporary emergency

jurisdiction if the child is present in this Commonwealth[.]”) (emphasis

added). Therefore, the trial court correctly dismissed Grandparents’ petition.

      Based upon the foregoing, we affirm the trial court’s order dismissing

Grandparents’ complaint for custody and petition for emergency special relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/22/2020




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