            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                   UNPUBLISHED
In re E. PADELSKY, Minor.                                          August 29, 2019

                                                                   No. 347293
                                                                   Oakland Circuit Court
                                                                   Family Division
                                                                   LC No. 2018-865869-NA


Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

PER CURIAM.

        In this child-protection proceeding, petitioner, the Michigan Department of Health and
Human Services (DHHS), filed a petition requesting that the trial court exercise jurisdiction over
the minor child and terminate the parental rights of respondent, the child’s father and a resident
of Colorado, at the initial dispositional hearing. Because a child-custody proceeding was
pending in Colorado, the trial court dismissed the petition under the Uniform Child-Custody
Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. Petitioner declined to
appeal the dismissal order, but the child’s nonrespondent mother, C. Fasullo-Nachtrieb
(Nachtrieb), filed a motion for reconsideration of that order. The trial court granted the motion
and reinstated the petition. Respondent now appeals by delayed leave granted. We reverse and
vacate the trial court’s order reinstating this case.

                                      I. BACKGROUND

       Respondent and Nachtrieb previously lived in California. They have a history of
accusing each other of parental unfitness, and Nachtrieb has accused respondent of sexually and
physically abusing the minor child. In 2012, a California court entered an order awarding
respondent legal and physical custody of the child. According to documents in the California
proceeding, a California judge transferred custody from Nachtrieb to respondent because it found
that Nachtrieb had Munchausen disorder by proxy, and that she mentally abused the child.
Respondent and the child subsequently relocated to Colorado, and Nachtrieb relocated to
Michigan. On August 6, 2018, respondent filed a “Registration of foreign decree” with the
Broomfield District Court in Colorado with respect to the California custody order.

       In the summer of 2018, the child arrived in Michigan for parenting time with Nachtrieb.
Nachtrieb notified Michigan Child Protective Services (CPS) that the child disclosed physical


                                               -1-
and sexual abuse by respondent. Nachtrieb petitioned the Oakland Circuit Court for custody of
the child. The trial court communicated with the California court, which declined to exercise
jurisdiction because neither of the parties or the child then resided in California. The trial court
issued an ex parte order asserting temporary emergency jurisdiction under the UCCJEA and
awarded Nachtrieb temporary custody of the child “for a period of two weeks from the date of
this order (until August 16, 2018) which this Court considers adequate time to allow plaintiff to
obtain an order from the state having jurisdiction under . . . the UCCJEA, which appears to be
the child’s home state of Colorado.” Nachtrieb did not obtain any order from the Colorado court.

        On August 13, 2018, the DHHS filed a petition for jurisdiction over the child pursuant to
MCL 712A.2(b). The petition alleged that respondent sexually abused the then 14-year-old child
“beginning in 2013 and ending in 2015,” and requested termination of respondent’s parental
rights at the initial disposition. The trial court initially authorized the petition, but on August 28,
2018, it dismissed the petition on the ground that Colorado was a more convenient forum under
the UCCJEA. The DHHS declined to appeal this order.

        On October 2, 2018, Nachtrieb moved the trial court to reconsider or “clarify” its
dismissal order pursuant to MCR 3.992. Nachtrieb asserted that the Colorado CPS authorities
did not intend to further pursue child-protective proceedings to address the child’s allegations of
abuse. She argued that Michigan therefore had jurisdiction over the petition to terminate
respondent’s parental rights. In an order dated November 16, 2018, the trial court granted
Nachtrieb’s motion and reinstated the petition. This Court granted respondent’s delayed
application for leave to appeal that order. The trial court has stayed further proceedings pending
this appeal.

                                II. JURISDICTIONAL ANALYSIS

        On appeal, respondent argues that the trial court did not have continuing jurisdiction to
act under the UCCJEA and, therefore, erred by reinstating the petition in this child-protection
matter. Respondent also raises various procedural challenges to the trial court’s consideration of
Nachtrieb’s motion for reconsideration after having previously dismissed the petition for court
jurisdiction. Because we conclude that the jurisdictional analysis under the UCCJEA is
dispositive of this appeal, it is unnecessary to address respondent’s additional procedural issues.

        Whether the trial court has subject-matter jurisdiction is a question of law reviewed de
novo. Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). However, the trial
court’s determination whether to exercise jurisdiction under the UCCJEA is reviewed for abuse
of discretion. Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008). The interpretation
and application of statutes is a question of law reviewed de novo. Atchison, 256 Mich App at
534-535.

        MCL 712A.2(b) governs jurisdiction over child-protection proceedings, but when other
states are involved, the UCCJEA takes precedence. The resolution of this appeal requires
interpretation and application of the UCCJEA. In Atchison, 256 Mich App at 535, this Court
observed:



                                                 -2-
       The primary goal of statutory interpretation is to give effect to the intent of the
       Legislature. . . . This determination is accomplished by examining the plain
       language of the statute itself. . . . If the statutory language is unambiguous,
       appellate courts presume that the Legislature intended the meaning plainly
       expressed and further judicial construction is neither permitted nor required. . . .
       Under the plain-meaning rule, courts must give the ordinary and accepted
       meaning to the mandatory word “shall” and the permissive word “may” unless to
       do so would frustrate the legislative intent as evidenced by other statutory
       language or by reading the statute as a whole. [Citations omitted.]

In Atchison, 256 Mich App at 536, this Court stated that the UCCJEA

       was designed to: (1) rectify jurisdictional issues by prioritizing home-state
       jurisdiction, (2) clarify emergency jurisdictional issues to address time limitations
       and domestic-violence issues, (3) clarify the exclusive continuing jurisdiction for
       the state that entered the child-custody decree, (4) specify the type of custody
       proceedings that are governed by the act, (5) eliminate the term “best interests” to
       the extent it invited a substantive analysis into jurisdictional considerations, and
       (6) provide a cost-effective and swift remedy in custody determinations.

       MCL 722.1102 provides the following definitions pertinent to this appeal:

              (b) “Child” means an individual who is younger than 18 years of age.

                (c) “Child-custody determination” means a judgment, decree, or other
       court order providing for legal custody, physical custody, or parenting time with
       respect to a child. Child-custody determination includes a permanent, temporary,
       initial, and modification order. Child-custody determination does not include an
       order relating to child support or other monetary obligation of an individual.

                (d) “Child-custody proceeding” means a proceeding in which legal
       custody, physical custody, or parenting time with respect to a child is an issue.
       Child-custody proceeding includes a proceeding for divorce, separate
       maintenance, separation, neglect, abuse, dependency, guardianship, paternity,
       termination of parental rights, and protection from domestic violence, in which
       the issue may appear. Child-custody proceeding does not include a proceeding
       involving juvenile delinquency, contractual emancipation, or enforcement under
       article 3.

                                             * * *

              (g) “Home state” means the state in which a child lived with a parent or a
       person acting as a parent for at least 6 consecutive months immediately before the
       commencement of a child-custody proceeding. In the case of a child less than 6
       months of age, the term means the state in which the child lived from birth with a
       parent or person acting as a parent. A period of temporary absence of a parent or
       person acting as a parent is included as part of the period.

                                               -3-
              (h) “Initial determination” means the first child-custody determination
       concerning a particular child.

              (i) “Issuing court” means the court that makes a child-custody
       determination for which enforcement is sought under this act.

              (j) “Issuing state” means the state in which a child-custody determination
       is made.

              (k) “Modification” means a child-custody determination that changes,
       replaces, supersedes, or is otherwise made after a previous child-custody
       determination concerning the same child, whether or not it is made by the court
       that made the previous child-custody determination. [Emphasis added.]

Under these definitions, the California custody order qualifies as a child-custody determination
under § 102(c). The definition of “child-custody proceeding” includes the California and
Colorado proceedings governing custody and parenting time, and the Michigan child-protection
proceeding, because § 102(d) does not distinguish between domestic-relations proceedings and
child-protection proceedings. Michigan is not the child’s home state because the child did not
reside in this state for six consecutive months before petitioner filed the petition for jurisdiction
and termination of respondent’s parental rights. Rather, Colorado qualifies as the child’s home
state under § 102(g). The custody order in California was the “initial determination” under
§ 102(h), but California declined jurisdiction.

       MCL 722.1201 governs a court’s jurisdiction to make an “initial child-custody
determination”:

       (1) Except as otherwise provided in section 204, a court of this state has
       jurisdiction to make an initial child-custody determination only in the following
       situations:

                (a) 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 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.

               (b) A court of another state does not have jurisdiction under subdivision
       (a), 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 section 207 or
       208, and the court finds both of the following:

              (i) The child and the child’s parents, or the child and at least 1 parent or a
       person acting as a parent, have a significant connection with this state other than
       mere physical presence.

               (ii) Substantial evidence is available in this state concerning the child’s
       care, protection, training, and personal relationships.


                                                -4-
              (c) All courts having jurisdiction under subdivision (a) or (b) have
       declined to exercise jurisdiction on the grounds that a court of this state is the
       more appropriate forum to determine the custody of the child under section 207 or
       208.

                (d) No court of another state would have jurisdiction under subdivision
       (a), (b), or (c).

       (2) Subsection (1) is the exclusive jurisdictional basis for making a child-custody
       determination by a court of this state.

       (3) Physical presence of, or personal jurisdiction over, a party or a child is neither
       necessary nor sufficient to make a child-custody determination. [Emphasis
       added.]

Under § 201, Michigan does not have jurisdiction to make an initial custody determination,
except as provided in § 204, because Michigan is not the child’s home state and the child had not
resided in Michigan for six months, and because Colorado had jurisdiction and it did not decline
jurisdiction under § 207 (another forum is more convenient) or § 208 (person invoking the
court’s jurisdiction has engaged in unjustifiable conduct). Accordingly, neither § 201(1)(a), nor
§ 201(1)(b), nor § 201(1)(c) applies. And § 201(1)(d) does not apply because Colorado has
jurisdiction.

        Subsection 201(1) restricts this state’s jurisdiction to make an initial child-custody
determination to the four situations set forth therein. Subsection 201(2) provides that § 201(1)
“is the exclusive jurisdictional basis for making a child-custody determination.” (Emphasis
added.) Consequently, Michigan does not have jurisdiction because none of the situations
applies.

       MCL 722.1203 governs modification of a child-custody determination and provides as
follows:

       Except as otherwise provided in section 204, a court of this state shall not modify
       a child-custody determination made by a court of another state unless a court of
       this state has jurisdiction to make an initial child-custody determination under
       section 201(1)(a) or (b) and either of the following applies:

              (a) The court of the other state determines it no longer has exclusive,
       continuing jurisdiction under section 202 or that a court of this state would be a
       more convenient forum under section 207.

               (b) A court of this state or a court of the other state determines that neither
       the child, nor a parent of the child, nor a person acting as a parent presently
       resides in the other state. [Emphasis added.]

Under § 203, the Michigan court is precluded from modifying the California child-custody
determination or any custody determination made by a Colorado court, unless it (1) has
jurisdiction under § 201(a) or (b), and one of the stated conditions applies. As previously stated,
                                                -5-
Michigan does not have jurisdiction under § 201(a) or (b). It therefore does not have jurisdiction
to modify the existing custody determination.

       MCL 722.1204 governs temporary emergency jurisdiction, and provides as follows:

       (1) A court of this state has temporary emergency jurisdiction if the child is
       present in this state 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.

       (2) If there is no previous child-custody determination that is entitled to be
       enforced under this act and if a child-custody proceeding has not been
       commenced in a court of a state having jurisdiction under sections 201 to 203, a
       child-custody determination made under this section remains in effect until an
       order is obtained from a court of a state having jurisdiction under sections 201 to
       203. If a child-custody proceeding has not been or is not commenced in a court of
       a state having jurisdiction under sections 201 to 203, a child-custody
       determination made under this section becomes a final child-custody
       determination, if that is what the determination provides and this state becomes
       the home state of the child.

       (3) If there is a previous child-custody determination that is entitled to be
       enforced under this act or if a child-custody proceeding has been commenced in a
       court of a state having jurisdiction under sections 201 to 203, an order issued by a
       court of this state under this section must specify in the order a period of time that
       the court considers adequate to allow the person seeking an order to obtain an
       order from the state having jurisdiction under sections 201 to 203. The order
       issued in this state remains in effect until an order is obtained from the other state
       within the period specified or the period expires.

       (4) If a court of this state that has been asked to make a child-custody
       determination under this section is informed that a child-custody proceeding has
       been commenced in, or that a child-custody determination has been made by, a
       court of a state having jurisdiction under sections 201 to 203, the court of this
       state shall immediately communicate with the other court. If a court of this state
       that is exercising jurisdiction under sections 201 to 203 is informed that a child-
       custody proceeding has been commenced in, or a child-custody determination has
       been made by, a court of another state under a statute similar to this section, the
       court of this state shall immediately communicate with the court of the other state.
       The purpose of a communication under this subsection is to resolve the
       emergency, protect the safety of the parties and the child, and determine a period
       for the duration of the temporary order. [Emphasis added.]

The trial court had temporary emergency jurisdiction under § 204. Petitioner’s allegations
established an emergency to protect the child from alleged abuse. All parties agree that the trial
court had authority to exercise temporary jurisdiction under § 204, thus permitting it to issue the
August 2, 2018 ex parte order. The court was required to comply with § 204(3) by specifying a

                                                -6-
period of time to allow the petitioning party to obtain an order from the state having jurisdiction
over the child. The trial court satisfied this requirement, but Nachtrieb did not obtain any order
from the Colorado court in the specified two-week period. The trial court also satisfied its
requirement under§ 204(4) by communicating with the Colorado court. The trial court properly
dismissed the petition because its jurisdiction was only temporary.1

       MCL 722.1206 governs simultaneous child-custody proceedings, and provides as
follows:

       (1) Except as otherwise provided in section 204, a court of this state may not
       exercise its jurisdiction under this article if, at the time of the commencement of
       the proceeding, a child-custody proceeding has been commenced in a court of
       another state having jurisdiction substantially in conformity with this act, unless
       the proceeding has been terminated or is stayed by the court of the other state
       because a court of this state is a more convenient forum under section 207.

       (2) Except as otherwise provided in section 204, before hearing a child-custody
       proceeding, a court of this state shall examine the court documents and other
       information supplied by the parties as required by section 209. If the court
       determines that, at the time of the commencement of the proceeding, a child-
       custody proceeding has been commenced in a court in another state having
       jurisdiction substantially in accordance with this act, the court of this state shall
       stay its proceeding and communicate with the court of the other state. If the court
       of the state having jurisdiction substantially in accordance with this act does not
       determine that the court of this state is a more appropriate forum, the court of this
       state shall dismiss the child-custody proceeding.

       (3) In a proceeding to modify a child-custody determination, a court of this state
       shall determine whether a proceeding to enforce the child-custody determination
       has been commenced in another state. If a proceeding to enforce a child-custody
       determination has been commenced in another state, the court may do any of the
       following:

               (a) Stay the proceeding for modification pending the entry of an order of a
       court of the other state enforcing, staying, denying, or dismissing the proceeding
       for enforcement.

              (b) Enjoin the parties from continuing with the proceeding for
       enforcement.



1
  The trial court erroneously cited MCL 722.1207 as its basis for dismissal. As discussed below,
§ 207 applies only if a court has continuing jurisdiction. However, because the trial court
reached the right result by dismissing the petition, it should have left the original dismissal in
place. See Hoffenblum v Hoffenblum, 308 Mich App 102, 114; 863 NW2d 352 (2014).


                                                -7-
             (c) Proceed with the modification under conditions it considers
      appropriate. [Emphasis added.]

Section 206 precluded the trial court from exercising jurisdiction because the Colorado
proceeding was not terminated or stayed. See MCL 722.1206(1). Nothing in the UCCJEA
provides an exception where the other state declines to address the specific circumstances
underlying the petition that triggered the Michigan court’s temporary jurisdiction. See id.

      MCL 722.1207 provides:

      (1) A court of this state that has jurisdiction under this act to make a child-
      custody determination may decline to exercise its jurisdiction at any time if it
      determines that it is an inconvenient forum under the circumstances and that a
      court of another state is a more appropriate forum. The issue of inconvenient
      forum may be raised upon the motion of a party, the court’s own motion, or the
      request of another court.

      (2) Before determining whether it is an inconvenient forum, a court of this state
      shall consider whether it is appropriate for a court of another state to exercise
      jurisdiction. For this purpose, the court shall allow the parties to submit
      information and shall consider all relevant factors, including all of the following:

              (a) Whether domestic violence has occurred and is likely to continue in the
      future and which state could best protect the parties and the child.

             (b) The length of time the child has resided outside this state.

             (c) The distance between the court in this state and the court in the state
      that would assume jurisdiction.

             (d) The parties’ relative financial circumstances.

              (e) An agreement by the parties as to which state should assume
      jurisdiction.

               (f) The nature and location of the evidence required to resolve the pending
      litigation, including the child’s testimony.

             (g) The ability of the court of each state to decide the issue expeditiously
      and the procedures necessary to present the evidence.

             (h) The familiarity of the court of each state with the facts and issues of
      the pending litigation.

      (3) If a court of this state determines that it is an inconvenient forum and that a
      court of another state is a more appropriate forum, it shall stay the proceedings
      upon condition that a child-custody proceeding be promptly commenced in


                                              -8-
       another designated state and may impose any other condition the court considers
       just and proper.

       (4) A court of this state may decline to exercise jurisdiction under this act if a
       child-custody determination is incidental to an action for divorce or another
       proceeding while still retaining jurisdiction over the divorce or other proceeding.
       [Emphasis added.]

Section 207 applies only to a court “that has jurisdiction under this act to make a child-custody
determination.” The trial court had jurisdiction to act on an emergency basis only. The court
therefore was not required to comply with the requirements for determining whether it was an
inconvenient forum.

        In sum, the trial court acted within its limited authority under the UCCJEA when it issued
the temporary ex parte order, and the trial court properly dismissed the child-protection petition
because it did not have continuing jurisdiction under the UCCJEA. Accordingly, the trial court
erred when it later reasserted its jurisdiction by reconsidering its dismissal order. We therefore
reverse the trial court’s decision and vacate the November 16, 2018 order reinstating this case.

       Reversed and vacated.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Jonathan Tukel
                                                            /s/ James Robert Redford




                                               -9-
