                      IN THE COURT OF APPEALS OF IOWA

                                    No. 18-2014
                              Filed February 20, 2019


IN THE INTEREST OF D.L., E.L., and J.L.,
Minor Children,

C.G., Mother,
      Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Poweshiek County, Rose Anne

Mefford, District Associate Judge.



       A mother appeals the juvenile court’s removal of her children and their

adjudication as children in need of assistance. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.




       Peter W. Stiefel, Victor, for appellant mother.

       Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

       Patrick J. Mahaffey of Mahaffey Law Office, Montezuma, guardian ad litem

for minor children.



       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                         2


BOWER, Judge.

       A mother appeals the juvenile court’s removal of her children and their

adjudication as children in need of assistance (CINA). We find the juvenile court

had subject matter jurisdiction to remove the children, who were originally from

Texas, under the temporary emergency jurisdiction provision of the Uniform Child-

Custody Jurisdiction Enforcement Act (UCCJEA), Iowa Code section 598B.204

(2018), and affirm the removal of the children.        On the issue of the CINA

adjudication and dispositional orders, we reverse the juvenile court and remand

for a determination of whether Texas has declined jurisdiction and whether Iowa

has become the children’s home state.

       I.     Background Facts & Proceedings

       J.L., father, and C.G., mother, are the parents of E.L., born in 2014, J.L.,

born in 2016, and D.L., born in 2017. The family lived in Texas but came to Iowa

in June 2018 for the father’s employment. On August 1, 2018, a social worker

from Texas contacted Iowa law enforcement and asked for a welfare check on the

children.1 The family was living in a hotel. The officers found the children alone in

the care of their seven-year-old paternal half-brother and the room in disarray. The

mother came while officers were present.

       The next day, a worker from the Iowa Department of Human Services (DHS)

went to the hotel room accompanied by officers.          They found the following

conditions:

       There were feces on the bathroom floor. The hotel room was
       covered with old food, clothing, and trash. A number of choking

1
   The family had been involved with the Texas Department of Family and Protective
Services before they came to Iowa.
                                              3


        hazards were noted. There was medication and cleaning chemicals
        accessible to the children. There was old and rotted food noted on
        the counter surfaces in the hotel. There was a lit candle accessible
        to the children. [C.G.] had not been awake for the day. (This was at
        approximately 2:00 p.m.) The children reported they had nothing to
        eat or drink that day. The children were dirty and unclothed.

The DHS worker took the children to the emergency room. J.L. had linear marks

on her right thigh, and the other children stated the mother had struck her with a

belt. All three children had head lice. Additionally, they were ill and required

antibiotics.2 The parents were charged with child endangerment.

        The children were removed from the parents’ care on August 3. After a

temporary removal hearing, the juvenile court found it had jurisdiction based on

“the severe neglect of these children and the need for an emergen[cy] removal.”

The children were placed in foster care in Iowa.3

        On September 13, the children were adjudicated CINA under section

232.2(6)(c)(2) and (n). The court denied the mother’s motion to dismiss for lack of

subject matter jurisdiction. At the dispositional hearing, held on November 8, the

mother again raised the issue of jurisdiction, which the court rejected. The mother

appealed the removal and CINA orders.

        II.     Standard of Review

        We review questions of subject matter jurisdiction under the UCCJEA de

novo. In re B.C., 845 N.W.2d 77, 79 (Iowa Ct. App. 2014). In our de novo review,

“[w]e give weight to the juvenile court’s findings of fact, especially in assessing the

credibility of witnesses, but are not bound by them.” Id.



2
    D.L. had an ear infection. E.L. and J.L. had either impetigo or a strep infection.
3
    The seven-year-old was also removed and returned to his mother’s care.
                                            4


         III.    Subject Matter Jurisdiction

         “The UCCJEA is a jurisdictional act that includes proceedings involving the

physical custody and visitation of a child as well as child-custody proceedings

involving neglect and abuse.” In re E.D., 812 N.W.2d 712, 716 (Iowa Ct. App.

2012).        The jurisdictional requirements of the UCCJEA are mandatory, not

discretionary. B.C., 845 N.W.2d at 79. “Neither the parties nor the court may

waive the issue of subject matter jurisdiction by consent or through failure to

address or prove jurisdiction.” In re J.M., 832 N.W.2d 713, 719 (Iowa Ct. App.

2013). In CINA proceedings, if the juvenile court does not have subject matter

jurisdiction under the UCCJEA, the action must be dismissed. B.C., 845 N.W.2d

at 79.

         A.      The juvenile court found there was subject matter jurisdiction to

remove the children from the parents’ care under the temporary emergency

jurisdiction provision of the UCCJEA. Section 598B.204(1) provides:

                  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.

“[S]ection 598B.204 entitles the court to exercise temporary emergency jurisdiction

over a child ‘present in this state,’ in an emergency because the child ‘is subjected

to or threatened with mistreatment or abuse.’” E.D., 812 N.W.2d at 716 (quoting

Iowa Code § 598B.204(1)). “A custody determination made under the court’s

temporary emergency jurisdiction is a temporary order.” J.M., 832 N.W.2d at 720.

Temporary emergency jurisdiction under section 598B.204 is considered “an
                                         5

extraordinary jurisdiction reserved for extraordinary circumstances.” E.D., 812

N.W.2d at 717.

       We find the juvenile court properly exercised temporary emergency

jurisdiction when it removed the children. The children were present in Iowa and

had been subjected to mistreatment and abuse by the parents. When the court

removed the children on August 3, 2018, the children were the ages of three, two,

and one. They did not have the ability to provide for their own needs. They were

dirty and unclothed and had not been given anything to eat or drink that day. The

parents had not been meeting the children’s medical needs, as the children

needed treatment with antibiotics. Furthermore, J.L. had bruising, swelling, and

linear marks on her right thigh and the other children said the mother had struck

the child with a belt.      Both parents were criminally charged with child

endangerment. The court properly took emergency action to protect the children.

       B.     The exercise of emergency jurisdiction under section 598B.204(1)

“only confers authority to enter temporary protective orders.” Id. Subsequent

CINA adjudication and dispositional orders may “not be premised upon the grant

of temporary emergency jurisdiction provided in section 598B.204(1).” Id. at 718;

see also J.M., 823 N.W.2d at 720 (“A court cannot premise a subsequent child in

need of assistance adjudication and dispositional order on section 598B.204(1)

alone.”). Thus, there must be a separate determination of whether Iowa has

subject matter jurisdiction for the CINA orders.

       The State has the burden to make a prima facie showing of jurisdiction

under the UCCJEA. J.M., 832 N.W.2d at 721. We are hampered in determining
                                             6


what evidence was offered by the State on the issue of jurisdiction because we do

not have transcripts from the adjudication or dispositional hearing.4

       Furthermore, the juvenile court did not specify the statutory basis for the

determination the court had subject matter jurisdiction.            The court found the

children had resided in Iowa since June 2018, the parents moved to Iowa, and

Texas had dismissed its juvenile proceedings involving the children.

       Iowa is not the children’s home state, as the term is defined in section

598B.102(7), because they had not been living in Iowa for six months at the time

the CINA petition was filed. The children came to Iowa in June 2018 and the

petition was filed on August 6, 2018. We conclude Iowa does not have subject

matter jurisdiction as the children’s home state.

       “A court that has exercised temporary emergency jurisdiction can become

the child’s home state under certain circumstances.” E.D., 812 N.W.2d at 719.

Section 598B.204(2) provides:

               If a child-custody proceeding has not been or is not
       commenced in a court of a state having jurisdiction under sections
       598B.201 through 598B.203, a child-custody determination made
       under this section becomes a final determination, if it so provides and
       this state becomes the home state of the child.

       In considering this provision, we have stated, “One of the difficulties of this

provision for the trial court is determining if a child-custody proceeding has been



4
    Counsel for the mother obtained audio recordings from the hearings and submitted a
statement pursuant to Iowa Rule of Appellate Procedure 6.806(1). The record does not
show the mother’s statement was approved by the court. See Iowa R. App. P. 6.806(3)
(“The statement and any objections or proposed amendments shall be submitted to the
district court for settlement and approval. The statement as settled and approved shall be
filed with the clerk of the district court and the clerk of the supreme court.”). Because the
statement was not approved, we do not rely on the mother’s statement concerning the
adjudication and dispositional hearings.
                                            7

commenced or will be commenced in another state.” Id. We determined when a

child’s home state is not Iowa, even when the court is not informed of proceedings

in another state, “the better practice is for the court itself to make this

communication to clarify jurisdiction before proceeding, and ensure there are not

two competing orders or actions.” Id. at 720. We stated in order for Iowa to have

subject matter jurisdiction, there should be evidence of communication with the

other state and an order showing the state declined jurisdiction. Id. at 720–21; see

also Iowa Code § 598B.201(1)(b) (providing Iowa would have jurisdiction if the

court of the child’s home state declined to exercise jurisdiction).

       The only evidence on this issue is the testimony of Meagan See, a child

abuse investigator with DHS, who stated at the removal hearing she had been told

Texas closed its case on the children but she did not have a written order. The

State claims the present record is not sufficient to show Iowa has subject matter

jurisdiction of the CINA proceedings and asks for the case to be remanded for a

determination of whether Texas has declined jurisdiction and whether Iowa has

become the children’s home state. We agree with the State’s request.

       We follow the disposition found in E.D., 812 N.W.2d at 722:

               We reverse and remand and upon remand the court shall
       enter an order dismissing the CINA petition. We also vacate the
       order adjudicating the child[ren] as . . . CINA, as well as the
       subsequent dispositional order. The emergency temporary order
       shall remain in effect pursuant to section 598B.204, for a period of
       sixty days from the filing of the procedendo in this case. On remand,
       the juvenile court may contact the [Texas] courts to determine if that
       state is willing to exercise jurisdiction in this case. If [Texas] is willing
       to exercise jurisdiction, the juvenile court must defer to the exercise
       of that jurisdiction and transfer this case to [Texas] for further
       proceedings. If [Texas] declines to exercise jurisdiction, the juvenile
       court may proceed to exercise of jurisdiction in any newly filed CINA
       proceedings pursuant to section 598B.201(1)(b).
                                         8



(Footnote omitted).

      On remand, the parties should file jurisdictional affidavits. Additionally, the

juvenile court should determine the specific statutory basis for its exercise of

subject matter jurisdiction. While the matter is pending on remand, the emergency

temporary removal order remains in effect. We do not retain jurisdiction.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
