J-A17015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.C.W.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    M.R.                                       :
                                               :
                       Appellant               :   No. 321 WDA 2018
                                               :
    V.R. AND M.R., INTERVENERS                 :

                     Appeal from the Order February 9, 2018
                 In the Court of Common Pleas of Greene County
                   Civil Division at No(s): A.D. No. 531 of 2014


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 27, 2018

       M.R. (“Father”) appeals from the order entered on February 9, 2018, in

the Court of Common Pleas of Greene County, that relinquished jurisdiction of

the child custody litigation to the Circuit Court of Ohio County, West Virginia.

Upon review, we affirm.

       Father and C.C.W. (“Mother”), who never married, lived with their three

daughters1 in Ohio County, West Virginia, until 2013, when Mother relocated

with Children to Greene County, Pennsylvania. Trial Court Opinion, 3/26/18,



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1The children are A.M.R., born in November 2003; M.R., born in July 2008;
and S.R., born in August 2009 (collectively, “Children”).
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at 1-2. Mother initiated a child custody action in the Greene County Court of

Common Pleas (“trial court”) in July 2014, wherein she requested primary

physical custody.2 Id. at 2. However, in October 2014, the trial court granted

Father, who continued to reside in Ohio County, West Virginia, primary

physical custody of Children, and Mother partial physical custody three

weekends per month during the school year and shared physical custody on

alternating weeks during the summer. Id. Thereafter, in 2015, Mother moved

to Washington County, Pennsylvania, where she remained up through and

including the time of the subject proceedings.       See Father’s brief at 34;

Mother’s brief at 3.      On October 13, 2016, the trial court limited Mother’s

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2 The trial court had jurisdiction to make an initial custody determination
pursuant to Section 5421(a)(1) of the UCCJEA, which provides in relevant
part:

       § 5421. Initial child custody jurisdiction.

       (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).



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custody to “supervised visitation” every Saturday from 12:00 p.m. to 3:00

p.m.3, 4 Trial Court Opinion, 3/26/18, at 2.

       Mother filed exceptions to the trial court’s custody order, but the court

continued the hearing on her exceptions because a court in West Virginia had

adjudicated Children dependent. See Order, 12/6/17. Children were placed

in the protective custody of the West Virginia Department of Health and

Human Services (“Agency”) on May 22, 2017, due to allegations that Father

abused drugs. Trial Court Opinion, 3/26/18, at 2. The Agency’s investigation

into the allegations was ongoing at the time of the subject proceedings, and

Children remained in foster care in West Virginia. Id.




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3 Pursuant to Section 5323 of the Child Custody Act, 23 Pa.C.S. §§ 5321-5340,
“supervised visitation” is not included in the types of custody a court may
award. Rather, the Act provides for “supervised physical custody,” which it
defines as “Custodial time during which an agency or an adult designated by
the court or agreed upon by the parties monitors the interaction between the
child and the individual with those rights.” 23 Pa.C.S. § 5322(a). We construe
the October 13, 2016 order as having awarded Mother “supervised physical
custody.”

4 Children’s paternal grandparents, who have resided in Ohio County, West
Virginia, during all times relevant to the underlying matter, filed a petition to
intervene in the underlying custody action in or around August 2016, which
the trial court granted. See Trial Court Opinion, 3/26/18, at 2. The October
13, 2016 custody order also awarded the grandparents partial physical
custody as needed. Id. We observe that the grandparents did not file a notice
of appeal from the subject order, and they did not file a brief in this appeal.


                                           -3-
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        On February 2, 2018, Mother filed in the trial court a “petition to confirm

Pennsylvania custody jurisdiction and for primary custody.” Mother requested

that the trial court issue an order confirming Pennsylvania custody jurisdiction

under      the   Uniform   Child   Custody   Jurisdiction   and   Enforcement   Act

(“UCCJEA”), 23 Pa.C.S. §§ 5401-5482, “for ongoing child custody litigation in

Pennsylvania which litigation was interrupted by emergency and temporary

jurisdiction assumed by the [Agency] filing . . . an abuse and neglect petition

in West Virginia against the parties[,] and the [Agency] taking custody of the

Children and placing them in foster care in May, 2017[.]” Petition, 2/2/18, at

¶ 64(i).

        Mother alleged that, although named as a co-defendant in the

dependency action filed in the Circuit Court of Ohio County, West Virginia

(“Circuit Court”), following a proceeding on December 28, 2017, the Circuit

Court found she did not abuse or neglect Children. Id. at ¶ 55-56. Mother

further alleged that she filed an action for custody in the Circuit Court, but

that the Circuit Court “deferred” ruling on it. Id. at ¶ 59. Mother averred that

the Circuit Court’s deferral of her custody request was based on the October

13, 2016 order in effect in the trial court, which limited her to supervised

physical custody. Id. Therefore, Mother requested that the trial court issue

an emergency, interim order granting her primary physical and sole legal




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custody of Children, “pending and subject to the outcome of the [dependency]

proceeding against [F]ather in West Virginia[.]” Id. at ¶ 64(ii).

        On February 7, 2018, Father filed an answer to Mother’s petition. Father

neither admitted nor denied Mother’s request for the trial court to “confirm

custody jurisdiction” under the UCCJEA.

        On February 7, 2018, the trial court held oral argument on the issue of

jurisdiction. Trial Court Opinion, 3/26/18, at 3. Counsel for the parties agreed

that the Circuit Court assumed temporary emergency jurisdiction under its

version of Section 5424 of the UCCJEA by placing Children in foster care.5

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5   Section 5424 provides as follows.

        (a) General rule. — 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.

                                           ...

        (c) Previous custody determination or proceeding. — If
        there is a previous child custody determination that is entitled to
        be enforced under this chapter or a child custody proceeding has
        been commenced in a court of a state having jurisdiction under
        sections 5421 through 5423, any order issued by a court of this
        Commonwealth under this section must specify in the order a
        period that the court considers adequate to allow the person
        seeking an order to obtain an order from the state having
        jurisdiction under sections 5421 through 5423. The order issued
        in this Commonwealth remains in effect until an order is obtained



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However, Mother’s counsel argued that the “emergency” nature of the

jurisdiction no longer existed because the Circuit Court found that she did not

abuse or neglect Children. N.T., 2/7/18, at 66. Mother’s counsel asserted

that the Circuit Court nonetheless refused to place Children in her physical

custody because of the trial court’s October 13, 2016 order granting her

supervised physical custody. Id. at 69. Mother’s counsel requested that the

trial court determine jurisdiction together with the Circuit Court, and the trial

court agreed that it needed to communicate with the Circuit Court. Id. at 22,

55.



____________________________________________


       from the other state within the period specified or the period
       expires.

       (d) Mandatory communication between courts. — A court of
       this Commonwealth which has been asked to make a child custody
       determination under this section, upon being informed that a child
       custody proceeding has been commenced in or a child custody
       determination has been made by a court of a state having
       jurisdiction under sections 5421 through 5423, shall immediately
       communicate with the other court. A court of this Commonwealth
       which is exercising jurisdiction pursuant to sections 5421 through
       5423, upon being 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, shall immediately communicate with the court of that
       state to resolve the emergency, protect the safety of the parties
       and the child and determine a period for the duration of the
       temporary order.

23 Pa.C.S. § 5424.


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       Father’s counsel argued that the trial court should retain jurisdiction and

rule on Mother’s custody request after the dependency litigation in West

Virginia is resolved. Id. at 32-33, 56. Father’s counsel expressed his concern

that Mother’s counsel “wants to subvert all the evidence over three years that

has been put on the record” by seeking an interim custody order in the trial

court. Id. at 56.

       Thereafter, by order dated and entered on February 9, 2018, the trial

court relinquished jurisdiction as follows:

       Upon discussion with Judge James P. Mazzone of the Circuit Court
       of Ohio County, West Virginia Court and in consideration of the
       record and in the best interests of the children, we GRANT Judge
       Mazzone’s request to transfer the custody of the children to Ohio
       County, West Virginia.

Order, 2/9/18.

       On February 16, 2018, Father filed a motion for reconsideration, which

he amended on February 21, 2018. The trial court denied the motion. On

February 28, 2018, Father filed a notice of appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 6


____________________________________________


6 Mother states in her appellee brief that, “[s]ince the matter was transferred
to [the Circuit Court], Mother has gained temporary primary custody of the
children through the [Circuit Court], [which] is presiding over the [dependency
matter].” Mother’s brief at 9. Mother states that Children are residing with
her in Washington County, Pennsylvania, after ten months in foster care in
West Virginia. Id. Thus, because Mother presumably is not an aggrieved



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       Father presents the following issues for our review:

       A.     Did the trial court violate the notice provisions of the
       [UCCJEA] and deny [Father] due process by not initially contacting
       the foreign court and th[e]n failing to provide notice to the parties
       that the court was or had contacted the judge of the foreign
       jurisdiction[?]

       B.    Did the trial court violate the UCCJEA provisions by not
       allowing the parties to participate in, provide access to, or even
       make a record of the communication made between the courts
       before it transferred jurisdiction?

       C.    Did the [trial] court violate the UCCJEA by not giving the
       parties the opportunity to present facts or evidence, or hold a
       hearing on jurisdiction before a determination was made
       transferring the case to a foreign jurisdiction?

       D.    Did the trial court apply the correct standard, a “best
       interest of the child standard,” without citing reasons why or
       considering any other factors enumerated in the UCCJEA when
       deciding to change jurisdiction of the custody case?

Father’s brief at 13-14.

       Before turning to the merits of Father’s claims, we address Mother’s

request that this appeal be quashed as moot because the trial court “lacks the

authority to enter or otherwise amend a custody order.”7 Mother’s brief at

10. Specifically, Mother asserts in her brief that Children are in her physical



____________________________________________


party of the subject order, she did not file an appeal despite her petition for
the trial court to confirm jurisdiction and issue an interim custody order.

7Our Rules of Appellate Procedure provide that “any party may move . . . [t]o
dismiss for mootness.” Pa.R.A.P. 1972(a)(4). Therefore, we construe
Mother’s request as a motion to dismiss.

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custody in Washington County, Pennsylvania, pursuant to an interim order

issued by the Circuit Court on an unspecified date after the trial court issued

the order relinquishing its jurisdiction. See n. 6, supra. Therefore, Mother

asserts that venue would lie in Washington County, not Greene County, if this

matter would return to Pennsylvania. For this reason, Mother argues that, if

this Court agrees with Father that the trial court improperly relinquished

jurisdiction, the trial court cannot enter a custody order that would have any

legal force or effect; thus, Father’s appeal should be dismissed as moot. See

Mother’s brief at 9-10; see also In re J.A., 107 A.3d 799, 811 (Pa. Super.

2015) (“An issue before a court is moot if in ruling upon the issue the court

cannot enter an order that has any legal force or effect.”).

      Our Supreme Court has explained the distinction between subject

matter jurisdiction and venue, as follows:

      Subject matter jurisdiction refers to the competency of a given
      court to determine controversies of a particular class or kind to
      which the case presented for its consideration belongs. Venue is
      the place in which a particular action is to be brought and
      determined, and is a matter for the convenience of the litigants.
      Jurisdiction denotes the power of the court whereas venue
      considers the practicalities to determine the appropriate forum.

In re R.L.L.’s Estate, 409 A.2d 321, 322 n. 3 (Pa. 1979) (internal citations

omitted).   Based on these distinctions, “[v]enue assumes the existence of

jurisdiction.” See Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

2003).   The Court explained, “the terms are often used interchangeably


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because they must exist simultaneously in order for a court to properly

exercise its power to resolve the particular controversy.”        Id. at 1075.

However, the Court stated, “Jurisdiction of subject matter can never attach

nor be acquired by consent or waiver of the parties, while venue may always

be waived.” Id. at 1073 n. 3 (citations omitted).

        In J.K. v. W.L.K., 102 A.3d 511 (Pa. Super. 2014), this Court explained,

        While the UCCJEA is applicable to interstate proceedings, our
        Legislature has determined that its provisions “allocating
        jurisdiction and functions between and among courts of different
        states shall also allocate jurisdiction and functions between and
        among the courts of common pleas of this Commonwealth.” 23
        Pa.C.S.A. § 5471.

        In order to effectuate this legislative mandate, our supreme court
        has promulgated specific rules for applying the provisions of the
        UCCJEA to intrastate custody disputes. The rules recognize that
        all counties within the Commonwealth maintain subject matter
        jurisdiction of custody disputes. However, Pennsylvania Rule of
        Civil Procedure 1915.2 governing venue of custody matters
        defines how and what county may properly exercise that
        jurisdiction.[8]

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8   The Rule provides, in relevant part:

        Rule 1915.2. Venue

        (a)   An action may be brought in any county

        (1)(i) which is the home county of the child at the time of
        commencement of the proceeding, or

        (ii) which had been the child’s home county within six months
        before commencement of the proceeding and the child is absent



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Id. at 513-514 (emphasis added). Rule 1915.2(a)(1) and (2) “substantially

mirror the requirements of Section 5421.” Id. at 515 (footnote omitted).

       Here, there is no evidence in the certified record that Children reside in

Washington County. Indeed, the interim order that Mother alleges the Circuit

Court issued is not included in the certified record.     Therefore, we cannot

consider Mother’s argument. See Commonwealth v. Preston, 904 A.2d 1,

6 (Pa. Super. 2006) (en banc) (emphasis in original) (citations omitted)

(stating that, “matters which are not of record cannot be considered on

appeal. . . . In this regard, our law is the same in both the civil and criminal

context because, under the Pennsylvania Rules of Appellate Procedure, any

document which is not part of the officially certified record is deemed non-


____________________________________________


       from the county but a parent or person acting as parent continues
       to live in the county; or

       (2) when the court of another county does not have venue under
       subdivision (1), 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 the county other than mere physical
       presence and there is available within the county substantial
       evidence concerning the child’s protection, training and personal
       relationships; or

                                           ...

Pa.R.C.P. 1915.2(a)(1), (2).




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existent - a deficiency which cannot be remedied merely by including copies

of the missing documents in a brief or in the reproduced record.”). Even if we

could consider Mother’s argument, we observe that it is purely speculative,

and it would fail for this reason. Accordingly, we deny Mother’s motion to

dismiss.

        Next, we address Mother’s argument in her brief that Father’s issues on

appeal fail because the trial court did not have exclusive, continuing

jurisdiction pursuant to Section 5422 of the UCCJEA at the time of the subject

proceedings.9 Specifically, Mother claims that Washington County, where she



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9   Section 5422 provides, in relevant part:

        § 5422. Exclusive, continuing jurisdiction.

        (a) General rule. — Except as otherwise provided in section
        5424 (relating to temporary emergency jurisdiction), a court of
        this Commonwealth which has made a child custody
        determination consistent with section 5421 (relating to initial child
        custody jurisdiction) or 5423 (relating to jurisdiction to modify
        determination) has exclusive, continuing jurisdiction over the
        determination until:

        (1) a court of this Commonwealth determines that neither the
        child, nor the child and one parent, nor the child and a person
        acting as a parent have a significant connection with this
        Commonwealth and that substantial evidence is no longer
        available in this Commonwealth concerning the child’s care,
        protection, training and personal relationships; or




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has resided since 2015, had jurisdiction and not Greene County. We explained

in B.A.B. v. J.J.B., 166 A.3d 395 (Pa. Super. 2017), that, although the

UCCJEA speaks of jurisdiction, it is “axiomatic that ‘all counties within the

Commonwealth maintain subject matter jurisdiction of custody disputes.’” Id.

at 401 n. 10 (citing J.K., supra at 514). Thus, Mother’s contention is one of

venue, not subject matter jurisdiction.

       It is well-settled that, “[a]lthough subject matter jurisdiction may be

raised at any time during a judicial proceeding, [q]uestions of personal

jurisdiction, venue and notice which relate to the method by which a court

having the power to adjudicate the matter first obtained superintendence of

the cause of action . . ., must be raised at the first reasonable opportunity or

they are waived.” B.A.B., supra at 402 n. 11 (citing Goodman v. Goodman,

556 A.2d 1379 1390 (Pa. Super. 1989)).             Here, Mother did not raise any

question concerning venue in the trial court. Instead, she requested that the

trial court confirm jurisdiction and issue an interim order granting her physical

custody. Therefore, Mother’s argument is waived. Even if not waived, we

would reject her argument because the only conclusion possible on this record


____________________________________________


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

23 Pa.C.S. § 5422(a).


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is that Mother consented to the trial court’s venue at the time of the subject

proceedings.   See also Commonwealth v. Bethea, supra at 1073 n. 3

(citations omitted) (“Jurisdiction of subject matter can never attach nor be

acquired by consent or waiver of the parties, while venue may always be

waived.”).

      Next, we review sua sponte whether the trial court possessed subject

matter jurisdiction under Section 5422 when Mother filed the subject petition

in February 2018. See Grimm v. Grimm, 149 A.3d 77, 84 (Pa. Super. 2016)

(stating that this Court “may sua sponte raise the issue as subject matter

jurisdiction cannot be waived.”). Our standard of review is de novo, and our

scope of review is plenary. See S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa. Super.

2014) (holding “that a trial court’s decision that it possesses subject matter

jurisdiction under section 5422 is purely a question of law.     As such, our

standard of review is de novo and our scope of review is plenary.”).

      This Court has explained that, pursuant to Section 5422(a)(1),

“Pennsylvania will retain jurisdiction as long as a significant connection with

Pennsylvania exists or substantial evidence is present.” S.K.C., supra at 411

(emphasis added) (citing Rennie v. Rosenthol, 995 A.2d 1217, 1220-1221

(Pa. Super. 2010)). With respect to “a significant connection,” we have held

that one exists “where one parent resides and exercises his parenting time in




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the state and maintains a meaningful relationship with the child.”      S.K.C.,

supra at 412 (quotation omitted).

      In February 2018, Children’s custody was controlled by the October

2016 order limiting Mother to supervised physical custody for three hours per

week. The parties do not assert, and the record does not indicate, that Mother

exercised her supervised physical custody in Pennsylvania.              Further,

approximately seven months after the trial court issued the order, Children

were placed in foster care in West Virginia.         Therefore, Mother was not

exercising any parenting time in Pennsylvania in February 2018. As such, we

cannot conclude that Children had a “significant connection” with Pennsylvania

at the time Mother filed the subject petition.

      However, we conclude that “substantial evidence” was present in

Pennsylvania concerning Children’s “care, protection, training and personal

relationships.” Since the commencement of the custody action in 2014, the

locus of the custody litigation had been in the Greene County trial court. The

parties assert in their briefs, and the record confirms, that the custody action

resulted in protracted litigation for three years.    The trial court issued the

controlling custody order in October 2016, which Mother alleged precluded the

Circuit Court from granting her temporary physical custody after discharging

her from the dependency action but continuing it with respect to Father. In

fact, Father argued against Mother’s request for temporary physical custody


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alleging that she “wants to subvert all the evidence over three years that has

been put on the record” in the trial court, evidence which resulted in the most

recent order limiting her to supervised physical custody. N.T., 2/8/18, at 56.

Accordingly, we conclude that “substantial evidence” was present in

Pennsylvania; thus, the Greene County trial court possessed exclusive,

continuing jurisdiction over the child custody matter pursuant to Section 5422

when Mother filed the subject petition.

      Turning to the merits of Father’s issues on appeal, we review them

according to an abuse of discretion standard.      See S.K.C., supra at 406

(“when a trial court possesses subject matter jurisdiction over a child custody

dispute, a trial court’s decision to exercise that jurisdiction is subject to an

abuse of discretion standard of review.”). As we have explained, “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.”    B.A.B., supra at 403

(citation omitted).

      Father’s issues overlap, and so we review them together. The crux of

his contentions is that the trial court did not comply with the UCCJEA and

thereby denied the fundamental due process rights afforded to him by the

United States Constitution. It is well-settled that “[p]rocedural due process

requires, at its core, adequate notice, opportunity to be heard, and the chance


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to defend oneself before a fair and impartial tribunal having jurisdiction over

the case.” Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001) (internal

quotation marks and citations omitted). “Due process is flexible and calls for

such procedural protections as the situation demands.” In re Adoption of

Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996) (citing Mathews v.

Eldridge, 424 U.S. 319, 334, (1976)).

      Specifically, Father contends that the trial court (1) failed to immediately

contact the Circuit Court upon learning that it assumed emergency temporary

jurisdiction; (2) failed to provide notice to the parties that it would contact or

did contact the Circuit Court; (3) failed to allow the parties to participate in

the communication between the trial court and the Circuit Court; (4) failed to

make a record of the communication between both courts; (5) failed to

provide the parties with an opportunity to present facts or evidence before

making its decision to relinquish jurisdiction; and (6) improperly applied the

“best interest of the child” standard in deciding to relinquish jurisdiction. As

such, Father requests that the subject order be reversed and the case

remanded for proper compliance with the UCCJEA before relinquishing

jurisdiction to the Circuit Court.

      Father first asserts that the trial court failed to immediately contact the

Circuit Court upon learning that it assumed emergency temporary jurisdiction

pursuant to Section 5424(d), supra, which provides, in relevant part,


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      A court of this Commonwealth which is exercising jurisdiction
      pursuant to sections 5421 through 5423, upon being 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, shall immediately
      communicate with the court of that state to resolve the
      emergency, protect the safety of the parties and the child and
      determine a period for the duration of the temporary order.

23 Pa.C.S. § 5424(d).

      There is no dispute that the trial court failed to immediately contact the

Circuit Court upon learning of Children’s dependency. Rather, the trial court

continued or stayed Mother’s custody litigation upon learning of Children’s

dependency in West Virginia. When Mother filed her petition for the trial court

to confirm jurisdiction and issue an interim custody order in February 2018,

Children had been in foster care in West Virginia for nine months.

      Father, however, simply concludes that the trial court violated Section

5424(d), supra, and, in doing so, denied his due process rights. Father does

not assert that he suffered any actual harm as a result of the trial court’s

violation. Indeed, the trial court’s failure in this regard did not contribute to

its decision to relinquish jurisdiction, and did not prevent Father from filing

this appeal. See J.C. v. K.C., 179 A.3d 1124, 1130 (Pa. Super. 2018) (citing

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000) (“[relief]

is not warranted merely because some irregularity occurred during the trial or

another trial judge would have ruled differently; the moving party must

demonstrate . . . that he or she has suffered prejudice from the mistake”)).

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      Father’s second through fifth assertions relate to whether the trial court

failed to comply with Section 5410, which provides:

      § 5410. Communication between courts.

      (a) General rule. — A court of this Commonwealth may
      communicate with a court in another state concerning a
      proceeding arising under this chapter.

      (b) Participation of parties. — The court may allow the parties
      to participate in the communication. If the parties are not able to
      participate in the communication, they must be given the
      opportunity to present facts and legal arguments before a decision
      on jurisdiction is made.

      (c)     Matters     of    cooperation      between    courts.
      — Communication between courts on schedules, calendars, court
      records and similar matters may occur without informing the
      parties. A record need not be made of the communication.

      (d) Record. — Except as otherwise provided in subsection (c), a
      record must be made of a communication under this section. The
      parties must be informed promptly of the communication and
      granted access to the record.

      (e) Definition. — As used in this section, the term “record”
      means information that is inscribed on a tangible medium or that
      is stored in an electronic or other medium and is retrievable in
      perceivable form.

23 Pa.C.S. § 5410.

      With respect to Section 5410(d), Father accurately asserts that the trial

court did not inform the parties before communicating with the Circuit Court,

did not create a record of the communication, and did not inform the parties

of the communication before it transferred jurisdiction. However, Father again




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fails to assert that he suffered harm as a result of these failures, and his

complaints do not establish that he did.

      In its Rule 1925(a) opinion, the trial court stated:

      On February 9, 2018, after a telephone communication with the
      Honorable Judge James P. Mazzone of Ohio County, West Virginia,
      in consideration of the record and in the best interest of the
      Children, the [trial] [c]ourt granted the Honorable Judge’s request
      and transferred custody to Ohio County, West Virginia. . . .

Trial Court Opinion, 3/26/18, at 3. The trial court reasoned, “Here, there is

an ongoing investigation by the [Agency] and the [C]hildren are currently in

foster care in West Virginia. Prior to the [Agency] taking custody, the Children

lived with their Father and Grandparents, all West Virginia residents, for

several years. Finally, the Mother, [a] Washington County[,] [Pennsylvania]

resident, has filed a motion in [the Circuit Court] for custody. . . .” Id. at 4.

      The trial court did not state that it relinquished jurisdiction because of

its communication with the Circuit Court. Rather, the trial court stated that it

relinquished jurisdiction because of the ongoing dependency matter in the

Circuit Court; Father’s residency in Ohio County, West Virginia, with whom

Children resided prior to their dependency; and because Mother filed a custody

action in the Circuit Court. See id. Indeed, our review of the oral argument

proceedings, which occurred before the trial court’s communication with the

Circuit Court, indicates that it favored relinquishing jurisdiction based on the

record evidence. N.T., 2/7/18, at 57, 67-68. As such, we conclude that the


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trial court’s failures regarding Section 5410(d) did not contribute to its

decision to relinquish jurisdiction, and it did not prevent Father from filing an

appeal from the subject order. See J.C., supra.

      With respect to Section 5410(b), Father asserts that the trial court failed

to provide the parties with an opportunity to present facts and legal arguments

before relinquishing jurisdiction.   We disagree.     The trial court held oral

argument on February 7, 2018, regarding Mother’s petition to confirm

jurisdiction.   The above-stated facts relied upon by the trial court in

relinquishing jurisdiction were presented by counsel during the oral argument.

The trial court further explained in its Rule 1925(a) opinion, which the notes

of testimony support:

      On February 7, 2018, the [c]ourt allowed the parties to
      extensively argue the issue of jurisdiction for over an hour. At the
      end of the argument, the [c]ourt indicate[d] that it was ready to
      make a decision and inquired of the [p]arties whether the court
      should hold any additional hearings. Despite the inquiry, neither
      [p]arty requested any additional hearings.

Trial Court Opinion, 3/26/18, at 4; see also N.T., 2/7/18, at 63-70. As such,

we conclude that the trial court did not deny Father an opportunity to be heard

before deciding to relinquish jurisdiction.




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       Finally, Father asserts that the trial court improperly based its decision

to relinquish jurisdiction on the “best interest of the child” standard10 rather

than on the factors set forth in Section 5427, which provides, in relevant part:

       § 5427. Inconvenient forum.

       (a) General rule. — A court of this Commonwealth which has
       jurisdiction under this chapter 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 motion of a party, the court’s own motion or request of
       another court.

       (b) Factors. — Before determining whether it is an inconvenient
       forum, a court of this Commonwealth 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:

       (1) whether domestic violence has occurred and is likely to
       continue in the future and which state could best protect the
       parties and the child;

       (2) the length of time the child has resided outside this
       Commonwealth;

       (3) the distance between the court in this Commonwealth and the
       court in the state that would assume jurisdiction;

       (4) the relative financial circumstances of the parties;
____________________________________________


10 The best-interests standard is relevant in all child custody decisions in the
trial courts and considers all factors that legitimately have an effect upon the
child’s physical, intellectual, moral, and spiritual well[-]being. Saintz v.
Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847
A.2d 674, 677 (Pa. Super. 2004).


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J-A17015-18




      (5) any agreement of the parties as to which state should assume
      jurisdiction;

      (6) the nature and location of the evidence required to resolve
      the pending litigation, including testimony of the child;

      (7) the ability of the court of each state to decide the issue
      expeditiously and the procedures necessary to present the
      evidence; and

      (8) the familiarity of the court of each state with the facts and
      issues in the pending litigation.

      (c) Stay. — If a court of this Commonwealth 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 another designated state and may impose any other condition
      the court considers just and proper.

                                       ...

23 Pa.C.S. § 5427.

      Father is correct that the “best interests of the child” standard applicable

in child custody matters is not a factor to be considered under Section

5427(b). The trial court stated in the subject order and in its Rule 1925(a)

opinion that it considered “the record and the best interest of the children” in

relinquishing jurisdiction to the Circuit Court. The trial court provided the facts

it found determinative in its Rule 1925(a) opinion, which we again recite:

      Here, there is an ongoing investigation by the [Agency] and the
      [C]hildren are currently in foster care in West Virginia. Prior to
      the [Agency] taking custody, the Children lived with Father and
      Grandparents, all West Virginia residents, for several years.



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      Finally, Mother, [a] Washington County[,] [Pennsylvania]
      resident, has filed a motion in [the Circuit Court] for custody. . . .

Trial Court Opinion, 3/26/18, at 4. We conclude that these determinative facts

show that the trial court considered appropriate factors pursuant to Section

5427(b). As such, Father is not entitled to relief. Accordingly, we affirm the

February 9, 2018 order relinquishing jurisdiction to the Circuit Court in Ohio

County, West Virginia.

      Order affirmed. Motion to dismiss denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2018




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