J-A02044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    H.M.,                                               IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                                Appellant

                           v.

    S.B.,

                                Appellee                   No. 1212 WDA 2017


                       Appeal from the Order Dated July 26, 2017
                     In the Court of Common Pleas of Butler County
                       Civil Division at No(s): F.C. No. 17-90420-C


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                               FILED MARCH 02, 2018

            Father, H.M., appeals from an order of court, entered in the Butler

County Court of Common Pleas, that relinquished jurisdiction of the parties’

custody litigation from Pennsylvania to Arkansas. After careful consideration,

we conclude that the trial court erred in its application of the Uniform Child

Custody Jurisdiction and Enforcement Act (“UCCJEA1,” 23 Pa.C.S.A. §5401, et

seq.)        According, we are constrained to reverse the trial court’s order and

remand for further proceedings.

            The pertinent history discloses the following facts:




____________________________________________


1   Arkansas has also adopted the UCCJEA. See A.C.A. §9-19-101, et seq.
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      Father and Mother, S.B., are the parents of one child, L.B. The parties

met while attending college in Pennsylvania. Their brief relationship resulted

in Mother’s pregnancy. The child was born in Arkansas in April 2016. Mother

remained with the child in Arkansas until she moved to Florida three months

later in July 2016. Mother and child stayed in Florida for two months, from

July 2016 to late August 2016. For the next five months, from August 2016 to

February 2017, Mother and child resided in Butler County, Pennsylvania, with

her mother, step-father and grandfather. While in Butler, she filed for child

support against Father. On February 1, 2017, Father filed for custody in

Northumberland County, Pennsylvania. That same day, Mother absconded

with the child to Florida for ten days before moving back to Arkansas.

      For four months, from February 2017 to May 2017, Mother and child

were in Arkansas until Mother was evicted. Mother and child agreed to go

back to Father’s home in Northumberland, Pennsylvania. This arrangement

lasted a mere two weeks before Mother and child left, again without notice, to

stay with her parents in Butler, Pennsylvania, for an indeterminable amount

of time before she left with the child again to Arkansas. Significantly, the child

was never in the same place for six months or longer.

      Meanwhile, Father’s custody case in Northumberland County had been

transferred to Butler County; a custody conciliation was set for September

2017. Since May 2017, Mother had evidently been withholding the child from

Father. Father obtained emergency relief for interim custody on July 18, 2017.


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Days later, on July 21, 2017, Mother filed for custody in Arkansas, where she

alleged Arkansas was the home state. On July 25, 2017, the Butler County

trial court conducted a hearing on jurisdiction. After consulting the trial court

in Washington County, Arkansas, the Butler County court transferred

jurisdiction. The child support case in Pennsylvania has remained active since

its inception. Father appeals the transfer of jurisdiction in the custody matter.

      Father raises three issues on appeal:

         1. Whether Pennsylvania has jurisdiction of the above-
            captioned custody action pursuant to the UCCJEA?

         2. Whether the Pennsylvania trial           court    erred   in
            relinquishing custody to Arkansas?

         3. Whether the relinquishment of custody by the
            Pennsylvania trial court to Arkansas was contrary to the
            UCCJEA when the findings of the Pennsylvania trial court,
            after a hearing on jurisdiction, support significant
            contacts with Pennsylvania, and when the custody action
            was filed in Pennsylvania approximately six (6) months
            before any action was initiated in Arkansas?


      Our standard of review for questions involving jurisdiction is well settled:


         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)


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      Our review is deferential to the trial court's role as the ultimate arbiter

of fact. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa.Super. 2010). Accordingly, we

will not disturb the trial court's factual findings or credibility determinations

that the certified record supports. Id. (“We must accept findings of the trial

court that are supported by competent evidence of record, as our role does

not include making independent factual determinations.”) Although bound by

the trial court’s findings of fact, we are not bound by the deductions or

inferences drawn from those facts by the trial court. Wagner, 887 A.2d. at

290. (citation omitted).

      We begin our analysis by noting that these proceedings were

commenced first in Pennsylvania. See 23 Pa.C.S.A. § 5402 (Commencement:

The filing of the first pleading in a proceeding.) Next, we note that no state

meets the statutory definition of “home state.” Id. (Home state: The state in

which a child lived with a parent … for at least six consecutive months

immediately before the commencement of a child custody proceeding[.]) Id.

Finally, while Pennsylvania was the first state to issue a custody order, the

order was merely an interim award, and one that was not reached after a

hearing on the merits. Id. (Initial determination: the first child custody

determination concerning a particular child.).

      As such, the dispositional starting line is § 5421 “Initial Child Custody

Jurisdiction.” Although Father raised three separate issues on appeal, the only

question before this Court is whether the trial court misapplied this section


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      Section 5421(a) provides in pertinent part:


         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;

         (2) a court of another state does not have jurisdiction under
         paragraph (1) or a court of the home state of the child has
         declined to exercise jurisdiction on the ground that this
         Commonwealth is the more appropriate forum under section
         5427 (relating to inconvenient forum) or 5428 (relating to
         jurisdiction declined by reason of conduct) and:

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

         substantial evidence is available in this Commonwealth
         concerning the child's care, protection, training and personal
         relationships

         (3) all courts having jurisdiction under paragraph (1) or (2)
         have declined to exercise jurisdiction on the ground that a
         court of this Commonwealth is the more appropriate forum
         to determine the custody of the child under section 5427 or
         5428; or

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

23 Pa.C.S.A. § 5421(a)

      Arkansas’ version of 23 Pa.C.S.A. §5421 is codified at A.C.A. §9-19-201,

and the two sections are identical in substance. Therefore, the analysis is the



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same.   The trial court noted that the child and a parent have not been in

Pennsylvania for the requisite six months prior to the commencement of

Father’s action.   As such, the trial court properly recognized Pennsylvania

would not qualify as the “home state” and concluded that § 5421(a)(1) does

not provide a basis for jurisdiction. See Trial Court Opinion, 7/27/17, at 2-3.

      Next, the trial court examined § 5421(a)(2). The first prong of this test

requires this Court to determine whether any other state may assume

jurisdiction under the “home state” test. See 23 Pa.C.S.A. § 5421(a)(2); see

also McCoy v. Thresh, 862 A.2d 109, 112 (Pa. Super. 2004) (Pennsylvania

courts will not assume jurisdiction under “significant connections” principle

unless it appears that no other state can assume jurisdiction under statutory

prerequisites substantially similar to Pennsylvania law).      The trial court

similarly found that Arkansas does not meet the definition of “home state.”

      While Father’s argument for Pennsylvania jurisdiction survives the

threshold criteria of § 5421(a)(2), the trial court found that he failed to meet

the requirements of § 5421(a)(2)(i) or § 5421(a)(2)(ii).       See Trial Court

Opinion, 7/27/17, at 3.    Specifically, the trial court found that there was

neither substantial evidence that the child has a significant connection to the

Commonwealth, nor evidence of the child’s care, protection, training and

personal relationships was available in the Commonwealth. Id.

      However, the trial court determined that Arkansas met this test. But

the only evidence the trial court cited was that: 1) At the time of the


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jurisdiction hearing, Mother leased an apartment in Arkansas; 2) All of the

child’s medical care has been in Arkansas; 3) When working, Mother enrolled

the child in daycare in Arkansas. Trial Court Opinion, 7/27/17, at 3. Id. This

analysis is fatally deficient.

      We have described the purpose of the “significant connections” test as

a test designed to limit jurisdiction rather than to proliferate it. Wagner, 887

A.2d at 289. There must be maximum rather than minimum contact with the

state. Id. (citation omitted).

      To begin with, all of the trial court’s cited facts occurred after Father

filed his custody petition in Pennsylvania.     These facts did not exist on

February 1, 2017, which is the time frame the trial court needed to consider

when analyzing the connections to Arkansas and Pennsylvania. Moreover,

Father could largely argue the same points. He had a place to live. If given

the opportunity, he could provide adequate childcare while he was working or

in school. Furthermore, the court cited Mother’s housing, but not her previous

homelessness. The court cited Mother’s employment, but not her previous

unemployment. Also concerning is whether, as the trial court found, Mother

has only provided medical care for the child while the child was in Arkansas.

The trial court evidently did not consider to what extent, if any, Mother’s

deceitful actions have prevented Father and child from being able to establish

a significant connection to the Commonwealth. The trial court also discounted

both the entirety of the child’s extended family, as both sides reside in


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Pennsylvania, as well as the extent to which Mother has gone to them for help

raising the child.

      It was an abuse of discretion for the trial court to conclude that Mother

and the child have a significant connection to Arkansas. This constitutes a

reversible error. However, we need not determine that Father and child (or,

for that matter, Mother and child) have a significant connection to our

Commonwealth.        In this instance, § 5421 makes clear Pennsylvania has

jurisdiction regardless of whether there is a significant connection to

Pennsylvania. Section 5421(a)(3) is inapplicable, because while Arkansas was

amenable to accepting jurisdiction, as we have noted above, Arkansas did not

meet the criteria to do so under either § 5421(a)(1) nor (a)(2). This leaves

only § 5421(a)(4): a court in this Commonwealth has jurisdiction to make an

initial child-custody determination when no other court would have jurisdiction

under § 5421(a)(1)-(3).

      We also point out that our decision here reversing the trial court’s

relinquishment is not a determination that the case necessarily belongs in the

Butler County Court of Common Pleas.         Procedurally, the matter must be

remanded back to the Butler trial court, but it is for the trial court to determine




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whether the proper venue is in Butler County or in another county of this

Commonwealth.2

       Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.



       Judge Bowes joins in this Memorandum.

       Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2018




____________________________________________


2 We recognize that these proceedings might be delayed, as Father alleged at
oral argument that Mother is actively avoiding detection in Arkansas, and he
does not know her current whereabouts with the child. The trial court may
temporarily suspend the disbursement of Mother’s child support to compel
Mother to provide her current address and phone number, or appear in court
with the child for a custody hearing.

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