J. S30016/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

M.P. AND T.P.,                          :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                         Appellants     :
                                        :
                    v.                  :           No. 91 EDA 2015
                                        :
G.R.H., T.L.M. AND R.S.                 :


               Appeal from the Order Dated December 18, 2014,
                 in the Court of Common Pleas of Pike County
                      Civil Division at No. 1850-2014-Civil


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 02, 2015

      Appellants, M.P. and T.P., appeal from the order which dismissed their

petition for emergency custody of the minor children, J.H. and S.M.

(“the Children”), for lack of jurisdiction under the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401-5482.

Upon careful review, we affirm.

      We adopt the factual and procedural history of this case as set forth in

the trial court’s opinion.

                  This Appeal arises from a dispute regarding the
            custody of two (2) minor children (“minor children”).
            Defendants [G.R.H.] and [T.L.M.] are the biological
            parents of the minor children.         The State of
            Tennessee undertook custody of the minor children,
            placed them in foster care, and filed a Petition to
            terminate the parental rights of [G.R.H.] and
            [T.L.M.] in July, 2012. On or about April 12, 2013,
            the minor children were placed in the custody and
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          care of their paternal grandmother, Defendant
          [R.S.]. A hearing on the termination of [G.R.H.]’s
          and [T.L.M.]’s parental rights is scheduled for
          February 9, 2015, in Tennessee.

                After [R.S.] relocated to Pennsylvania, she
          purportedly entered into a Stipulated Custody
          Agreement (“Agreement”) with [M.P. and T.P.]
          (“Appellants”), wherein Appellants would take
          custody of the minor children. The Agreement was
          never made an Order of this or any other Court.
          [R.S.] delivered the minor children to Appellants at
          their home in Pike County, Pennsylvania, on or about
          January 12, 2014.      [R.S.] removed the minor
          children from Appellants’ care on or about
          November 25, 2014, in contemplation of a written
          revocation of the Agreement purportedly mailed to
          Appellants.

                Appellants filed an Emergency Complaint for
          Custody of the minor children (“Complaint”) in the
          Pike County Court of Common Pleas on December 8,
          2014, requesting Primary Physical and Sole Legal
          Custody of the minor children.      An emergency
          hearing was scheduled for December 17, 2014.
          [R.S.] filed a Motion to Stay Emergency Custody
          Order and Preliminary Objections to Plaintiffs’
          Complaint on December 12, 2014. Appellants filed a
          Motion for Order Requiring Attendance of the minor
          children at the December 17 hearing. Appellants’
          Motion was denied and the hearing on the Complaint
          was held on December 17, 2014.

                Following the December 17 hearing, this Court
          entered an Order dismissing Appellants’ Complaint
          for lack of jurisdiction, noting the initial custody
          determination made by the courts in Tennessee and
          the pending trial regarding termination of the
          parental rights of [G.R.H.] and [T.L.M.]. Appellants
          filed a Notice of Appeal on December 29, 2014.
          Appellants’ Concise Statement of Matters Complained
          of on Appeal makes the following assertions:




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            1.     That the trial court committed an error of
                   law in failing to communicate with the
                   court      in     Tennessee     regarding
                   jurisdiction; and

            2.     That the trial court committed an error of
                   law in dismissing the matter for lack of
                   jurisdiction.

Trial court opinion, 1/27/15 at 1-3.

      On appeal, appellants raise three issues:

            1.     Did the [t]rial [c]ourt err in proceeding with
                   the hearing when there was no proof of service
                   on either of the subject children’s natural
                   parents who were interested parties, and
                   should have had notice and the opportunity to
                   participate?

            2.     Did the [t]rial [c]ourt err in dismissing the case
                   for lack of jurisdiction?

            3.     Was the decision not to undertake jurisdiction
                   by the trial court void as to public policy?

Appellants’ brief at 5.

      As a preliminary matter, appellants’ issues one and three are waived.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a); see also Majorsky v. Douglas, 58

A.3d 1250, 1268 (Pa.Super. 2012).

      We now turn to appellants’ remaining issue that the trial court erred in

determining that Pennsylvania lacked jurisdiction to consider their custody

petition. We are guided by the following standard of review:

            A court’s decision to exercise or decline jurisdiction is
            subject to an abuse of discretion standard of review


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             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).

      This   case   presents   an   unusual   scenario.   R.S.,   the   paternal

grandmother, is a named defendant/appellee along with her son, G.R.H.,

who is the natural father of the Children, and T.L.M., the natural mother of

the Children.   The Children were taken by Children Services in Tennessee

and placed in foster care based on a petition for dependency and neglect

filed on July 27, 2012.    R.S. filed an intervening petition for custody in

Tennessee; and by order dated April 12, 2013, the Children were released

from dependency and placed into her care and custody. A hearing on the

petition to terminate parental rights of the natural parents was scheduled for

February 9, 2015, in Tennessee.           Father, G.R.H., is contesting the

termination of his parental rights. (Notes of testimony, 12/17/14 at 3.)




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     Meanwhile, plaintiffs/appellants, M.P and T.P., entered into a private

custody agreement called a Stipulated Custody Order (“Order”) with R.S.1

This Order is neither dated nor was it ever filed in the Court of Common

Pleas of Pike County.    The Order refers to M.P and T.P. as “proposed

adoptive parents.”   R.S. handed the Children over to M.P. and T.P. on

January 12, 2014, and on November 26, 2014, she unilaterally took the

Children back.   According to the notes of testimony, R.S. picked up the

Children from daycare and told M.P. and T.P. she was revoking the Order.

(Notes of testimony, 12/17/14 at 10.)

     Under the UCCJEA, the child’s home state is the preferred basis for

determining jurisdiction. McCoy v. Thresh, 862 A.2d 109, 113 (Pa.Super.

2004). The UCCJEA defines “home state” 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. In the case of a child six
           months of age or younger, the term means the state
           in which the child lived from birth with any of the
           persons mentioned. A period of temporary absence
           of any of the mentioned persons is part of the
           period.

23 Pa.C.S.A. § 5402. “Person acting as a parent” is defined as:




1
  The testimony at the December 17, 2014 hearing revealed R.S. got in
touch with M.P. and T.P. through the Swan Program (Pennsylvania Statewide
Adoption and Permanency Network). There is no blood relation between the
R.S. and M.P. and T.P. or an official placement order. (Notes of testimony,
12/17/14 at 5.)


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             [a] person, other than a parent, who:

             (1)   has physical custody of the child or has
                   had physical custody for a period of six
                   consecutive     months,   including  any
                   temporary absence, within one year
                   immediately before the commencement
                   of a child custody proceeding; and

             (2)   has been awarded legal custody by a
                   court or claims a right to legal custody
                   under the laws of this Commonwealth.

23 Pa.C.S.A. § 5402.

      Instantly, the trial court concluded the Children had resided in Pike

County from January 12, 2014 to November 25, 2014; thus, Pennsylvania

qualified as the home state of the Children.      Additionally, appellants had

acted as parents for at least six consecutive months before they filed the

complaint.    However, the trial court declined to assert jurisdiction over

appellants’ complaint because it found Tennessee to be a more appropriate

forum. The trial court provided three bases for its decision:

                   First, the Tennessee courts have yet to make a
             determination regarding the parental rights of
             [G.R.H.] and [T.L.M.], natural parents of the minor
             children.    A hearing on a Petition to Terminate
             Parental Rights of the Natural Parents of the minor
             children is scheduled to take place on February 9,
             2015, in Tennessee.        This Court believes that
             assertion of jurisdiction over the custody of minor
             children whose natural parents’ parental rights have
             yet to be determined would be imprudent and
             premature.

                  Second, Tennessee undertook custody of the
             minor children and initially placed them in foster care
             pursuant to a Petition for Dependency and Neglect.


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            After [R.S.] filed an intervening Petition for Custody
            in Tennessee, the minor children were released from
            Dependency and placed in [R.S.]’s custody. [R.S.]
            still retains custody of the minor children pursuant to
            the April 12, 2013, Order of the Tennessee court.

                  Third, there is no Order of Court in Pike County
            or anywhere in Pennsylvania which enforces the
            purported private custody agreement between
            Appellants and [R.S.].

Trial court opinion, 1/27/15 at 5.

      In light of the ongoing litigation and custody order issued by the courts

in Tennessee, we agree with the trial court’s reasoning.2 We find no abuse

of discretion in dismissing appellants’ complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2015




2
 We also note our agreement with the trial court’s discussion that there was
no basis for it to assert temporary emergency jurisdiction pursuant to
23 Pa.C.S.A. § 5424(a) because there were no allegations of abandonment,
mistreatment, or abuse made in this matter. While appellants’ complaint
was framed as an “Emergency Complaint for Custody,” it was, in fact, a
“Complaint for Custody.”


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