          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  JANUARY 2019 TERM


                                    _____________                       FILED
                                                                      May 31, 2019
                                     No. 18-0355                        released at 3:00 p.m.
                                                                    EDYTHE NASH GAISER, CLERK
                                    _____________                   SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA




                                      IN RE J.C.

  ____________________________________________________________________

                   Appeal from the Circuit Court of Mercer County
                           Honorable Derek Swope, Judge
                                Case No. 17-JA-211

                       REVERSED AND REMANDED
  ____________________________________________________________________

                              Submitted: May 14, 2019
                                Filed: May 31, 2019


Gerald R. Linkous, Esq.                             Patrick Morrisey, Esq.
Mercer County Public Defender                       Attorney General
Princeton, West Virginia                            Brandolyn N. Felton-Ernest, Esq.
Attorney for Petitioner A.B.-C.                     Assistant Attorney General
                                                    Attorneys for Respondent
Andrew T. Waight, Esq.                              Department of Health and Human
Childlaw Services, Inc.                             Resources
Princeton, West Virginia
Shannon L. Baldwin, Esq.
Baldwin Law Office PLLC
Bluefield, West Virginia
Guardians ad Litem for J.C.

JUSTICE HUTCHISON delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.     “Subject matter jurisdiction under the Uniform Child Custody

Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., cannot be

conferred by consent, waiver, or estoppel.” Syllabus point 5, Rosen v. Rosen, 222 W. Va.

402, 664 S.E.2d 743 (2008).



              2.     “The Uniform Child Custody Jurisdiction and Enforcement Act, West

Virginia Code § 48–20–101, et seq., is a jurisdictional statute, and the requirements of the

statute must be met for a court to have the power to adjudicate child custody disputes.”

Syllabus point 6, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008).



              3.     “Pursuant to West Virginia Code § 48–20–102(g) (2001), ‘home

state’ means the state in which the 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 less than six months of age, 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.” Syllabus point

3, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008).


                                             i
              4.     One of the requirements under West Virginia Code § 48-20-201(a)(2)

(2001), for a circuit court to obtain subject matter jurisdiction of a child whose home state

is not West Virginia, is that a “court” of the home state of the child must decline to exercise

jurisdiction. This requirement is not satisfied by evidence that some other person or entity

in the child’s home state declined jurisdiction.




                                              ii
Hutchison, Justice:

              This appeal was brought by A.B.-C. (hereinafter “Petitioner”) from the May

31, 2018, order of the Circuit Court of Mercer County that terminated her parental rights

to her infant son, J.C.1 The controlling issue on appeal is whether the circuit court had

subject matter jurisdiction to terminate Petitioner’s parental rights. Upon careful review

of the briefs, the appendix record, the arguments of the parties, and the applicable legal

authority, we reverse and remand.



                                              I.

                       FACTUAL AND PROCEDURAL HISTORY

              During the early evening hours of August 25, 2017, the Petitioner was

observed walking around for about an hour, with her son J.C., near an Advanced Auto store

in Princeton, West Virginia.2 An employee at the store contacted the local police to

investigate Petitioner’s behavior. After the police arrived they contacted the Respondent,

West Virginia Department of Health and Human Resources (hereinafter “DHHR”), and

requested a child protective service worker be dispatched to investigate the child’s safety.




              1
               Consistent with our long-standing practice in cases involving sensitive facts,
we use the initials where necessary to protect the identities of those involved in this case.
See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
              2
                  J.C. was approximately five months old at the time.
                                              1
At around 8:30 p.m. a DHHR child protective service worker arrived at the store.3 During

its investigation, DHHR learned that the Petitioner was from Richlands, Virginia. The

Petitioner informed DHHR that she was hitchhiking her way to Taylorsville, North

Carolina, where she hoped to live with a relative and find work.4 DHHR learned that the

Petitioner was married to a man named O.C., an alleged illegal immigrant from Mexico,

who resided in Richlands. It was also reported to DHHR that Petitioner left home because

of a domestic dispute she had with O.C. and her mother.



              At some point during the questioning by DHHR, Petitioner was taken to the

Princeton police station to continue the investigation. DHHR was able to contact O.C. by

phone. O.C. indicated that he did not have a vehicle, but that he would try to find a way to

come to Princeton. O.C. was able to get the Petitioner’s uncle to drive him to the police

station in Princeton. Upon his arrival, O.C. informed DHHR that Petitioner had mental

health issues and needed to go to a hospital. DHHR was able to learn from O.C. that

Virginia authorities had previously provided child protective services to O.C. and




              3
               For the sake of consistency, DHHR will be used with reference to the
investigation by its child protective service worker.
              4
               The Petitioner stated that she left Richlands on August 24, 2017, and was
able to hitchhike as far as Bluefield, West Virginia. It appears that while she was in
Bluefield an organization called Bluefield Union Mission provided hotel accommodations
for the Petitioner for one night. The next day the Petitioner was able to get a ride from
Bluefield to Princeton.
                                             2
Petitioner.5 DHHR contacted child protective services in Virginia, but was informed that

information regarding Petitioner and O.C. could not be disclosed. DHHR was told by

Virginia child protective services that any family incident occurring in West Virginia had

to be handled in West Virginia by DHHR.



              At the conclusion of the interview with Petitioner and O.C., DHHR decided

not to release J.C. to his parents. Instead, DHHR filed an application for temporary

emergency custody with the Magistrate Court of Mercer County. The reasons for taking

custody of J.C. were set out in the application as follows:

       Mother stated that she was leaving Richlands to go to NC, but was found in
       Princeton, WV with no ride or place to stay with the baby. Mother told
       different stories, but one was that she left because of a domestic between the
       child’s father & her mother. No protective caregiver.

After DHHR took custody of J.C., the Petitioner and O.C. left West Virginia.6



              On August 28, 2017, DHHR filed a child abuse and neglect petition against

the Petitioner and O.C. The basis for the petition was DHHR’s concerns about Petitioner’s




              5
              The Petitioner informed DHHR that Virginia child protective services had
ended because she and O.C. complied with the conditions that had been imposed. Three of
those conditions were that the family obtain housing, O.C. obtain employment, and that
O.C. not consume alcohol around the child.
              6
                  It is appears that the Petitioner went to North Carolina and O.C. returned to
Virginia.
                                                3
mental health and ability to care for J.C., a prior child protective service involvement in

Virginia, and O.C.’s alleged alcohol use and his failure to protect J.C.



              On September 11, 2017, the circuit court held a preliminary hearing to

determine whether there was probable cause that J.C. was abused or neglected and in

imminent danger. The Petitioner and O.C. were at the hearing but did not testify.7 DHHR

informed the circuit court that a family member of the Petitioner, an aunt named T.C., was

given temporary custody of J.C. by the state of Virginia, but that the custody order had

expired.8 T.C. was also designated as the payee for social security benefits that Petitioner

received. DHHR also informed the court that T.C. and other family members were trying

to have the Petitioner committed to a group home because of her mental health issues. The

court was further informed that when the Petitioner reached North Carolina, after J.C. was

taken from her, she lived in a shelter for several days before she was permitted to stay at

the home of one of her cousins. At the conclusion of the preliminary hearing, the circuit

court found probable cause for the abuse and neglect petition to proceed to an adjudicatory

hearing.




              7
               Before the hearing started, counsel for Petitioner informed the circuit court
that the case needed to be referred to Virginia for resolution. At the conclusion of the
hearing the circuit court instructed the assistant prosecutor to contact the attorney for the
county in Virginia where the Petitioner had lived, to determine if any court proceeding was
pending there.
              8
                  DHHR put on evidence from two of its child protective services workers.
                                              4
              On October 2, 2017, an adjudicatory hearing was held. Neither the Petitioner

nor O.C. appeared at the hearing.9 No witnesses were called at the hearing. Instead, the

circuit court incorporated the evidence taken at the preliminary hearing. Based upon the

preliminary hearing evidence, the circuit court found that the child was neglected. Further,

the court held that because of the failure of Petitioner and O.C. to attend the hearing, the

child was deemed abandoned as an aggravating factor.10



              A dispositional hearing was held on January 8, 2018.             The Petitioner

appeared at the hearing, but O.C. did not.11 No witness testimony was taken during the

hearing. However, the circuit court was informed that arrangements had been made for

Petitioner to have a psychological evaluation. It was also revealed that efforts were being

made to place J.C. with a relative in North Carolina if parental rights were terminated. The

court was also informed that Petitioner was pregnant. Petitioner’s counsel requested an

improvement period. The circuit court held that it would only consider an improvement

period for Petitioner if she “consent[ed] to jurisdiction for the child she’s carrying right



              9
               The circuit court was informed that Petitioner and O.C. had problems getting
transportation to West Virginia. The circuit indicated that it would “order the Department
transport mom and dad to visits and MDTs and to the hearings.”
              10
                The circuit court also denied a previously filed motion by Petitioner to
dismiss for lack of subject matter jurisdiction.
              11
                   At the time of the hearing Petitioner was living in Virginia once again.
                                                5
now.” At the request of counsel for O.C., the circuit court continued the dispositional

hearing so that arrangements could be made for O.C. to be present.

              On April 9, 2018, the dispositional hearing reconvened. However, neither

the Petitioner nor O.C. appeared at the hearing. The circuit court was informed by

Petitioner’s counsel that the Petitioner called counsel on the morning of the hearing and

informed him that she had given birth to a child in North Carolina.12 The court was also

informed that North Carolina’s child protective services had taken the newborn into

custody. DHHR and the Guardian ad Litem informed the court that efforts were being

made to try and have J.C. turned over to family members in North Carolina. The circuit

court continued the hearing to give DHHR an opportunity to try and arrange for placement

of J.C. with family members in North Carolina.13



              The dispositional hearing reconvened again on April 23, 2018. Neither the

Petitioner nor O.C. appeared at the hearing. Counsel for Petitioner informed the circuit

court that an active child protective services case was pending in a court in North Carolina,

regarding the child Petitioner gave birth to in that state.14 Petitioner’s counsel requested

the circuit court contact the North Carolina court to discuss relinquishing jurisdiction of


              12
                   The Petitioner had returned to North Carolina in February of 2018.
              13
                   J.C. was placed in an adoptive foster family in Mercer County on or about
April 19, 2018.
              14
                The circuit court was also informed that North Carolina’s child protective
services had arranged for the Petitioner to have a psychological evaluation.
                                               6
the West Virginia case to the court in North Carolina. DHHR informed the circuit court

that North Carolina’s child protective services believed that it should retain jurisdiction of

the child born there, and that the circuit court should keep jurisdiction of J.C. The circuit

court ruled that it would try to contact the North Carolina judge to determine whether that

judge wanted to take jurisdiction over J.C. The hearing was continued until May 21, 2018.



               On May 21, 2018, the dispositional hearing once again reconvened. The

Petitioner and O.C. did not appear at the hearing.15 At the outset of the hearing the circuit

court informed the attorneys in the case that he called the North Carolina judge on at least

five occasions in May, in an attempt to discuss the case. However, the circuit court was

never able to speak directly with the North Carolina judge. Petitioner’s counsel informed

the circuit court that the attorney representing Petitioner in the child custody proceeding in

North Carolina, informed him that the North Carolina judge believed the case should be

transferred to North Carolina.16 Petitioner’s counsel also informed the circuit court that

the North Carolina judge needed to have an order that authorized the circuit court to speak

with the North Carolina judge. The circuit court stated that it would not write such an




               15
                    At the time of the hearing it appears that O.C. had left the country and went
to Honduras.
               16
               The circuit court was also informed that the foster family in North Carolina
that had custody of Petitioner’s second child would like to adopt J.C.
                                                 7
order.17 After hearing testimony from a witness called by DHHR, the circuit ruled that it

was terminating the parental rights of Petitioner and O.C.18 A subsequent order was entered

terminating parental rights on May 31, 2018. Petitioner thereafter filed this appeal.19



                                             II.

                                STANDARD OF REVIEW

              We apply the following standard of review to dispositional determinations

made by the circuit court in abuse and neglect cases:

       Although conclusions of law reached by a circuit court are subject to de novo
       review, when an action, such as an abuse and neglect case, is tried upon the
       facts without a jury, the circuit court shall make a determination based upon
       the evidence and shall make findings of fact and conclusions of law as to
       whether such child is abused or neglected. These findings shall not be set
       aside by a reviewing court unless clearly erroneous. A finding is clearly
       erroneous when, although there is evidence to support the finding, the
       reviewing court on the entire evidence is left with the definite and firm
       conviction that a mistake has been committed. However, a reviewing court
       may not overturn a finding simply because it would have decided the case
       differently, and it must affirm a finding if the circuit court’s account of the
       evidence is plausible in light of the record viewed in its entirety.

              17
                The circuit court noted that, “[t]hat is the craziest damn thing I’ve heard …
in 40 years of practicing law.”
              18
                 DHHR’s witness put on testimony that basically provided a procedural
history of the case to the court. There was testimony that the circuit court did not order
Petitioner and O.C. to do anything to help regain custody of J.C. The circuit court was
informed that during a multidisciplinary team meeting it was suggested that Petitioner and
O.C. undergo psychological evaluations in Princeton, but that they both failed to appear
for their appointment. There was also testimony that no family case plan was prepared
because no improvement period was granted. DHHR informed the court that J.C. was
regularly transported to Petitioner and O.C. for visitation.
              19
                   No appeal was filed by O.C.
                                             8
Syl. pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Further, “[w]here

the issue on an appeal from the circuit court is clearly a question of law or involving an

interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). In view of these standards

we address the issues presented.



                                           III.
                                       DISCUSSION

              The Petitioner contends that the circuit court lacked subject matter

jurisdiction over the abuse and neglect proceeding, and therefore could not terminate her

parental rights.20 In support of this argument, the Petitioner points out that she and J.C. are

from Virginia and that they did not live in West Virginia for the time period required under

the Uniform Child Custody Jurisdiction and Enforcement Act, codified at W. Va. Code §

48-20-101, et seq. (2001) (hereinafter “UCCJEA”).21 DHHR and the Guardian ad Litem

take the position that the circuit court had subject matter jurisdiction.


              20
                 It was previously noted that DHHR filed an emergency custody petition on
August 25. The Petitioner has not contested custody of J.C. under the emergency petition.
See W. Va. Code § 48-20-204(a) (“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.”).
              21
               Prior to 2001, the UCCJEA was called the Uniform Child Custody
Jurisdiction Act and was codified at W. Va. Code § 48-10-1 (1981), et seq. We have
previously noted that the UCCJEA “changed the prior Act to afford jurisdictional priority
to the ‘home state’ in order to eliminate jurisdictional competition between courts
                                         9
                We note at the outset that, for purposes of the UCCJEA, an abuse and neglect

proceeding comes under its definition of a “child custody proceeding.”22           We have

previously recognized that “[s]ubject matter jurisdiction under the Uniform Child Custody

Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., cannot be

conferred by consent, waiver, or estoppel.” Syl. pt. 5, Rosen. The decision in Rosen also

held that “[t]he Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia

Code § 48–20–101, et seq., is a jurisdictional statute, and the requirements of the statute

must be met for a court to have the power to adjudicate child custody disputes.” Syl. pt. 6,

Rosen.



                The requirements for subject matter jurisdiction under the UCCJEA are set

out under W. Va. Code § 48-20-201(a).23 This statute provides as follows:

         (a) Except as otherwise provided in section 20-204, a court of this state has
         jurisdiction to make an initial child custody determination only if:



regarding child custody.” Rosen v. Rosen, 222 W. Va. 402, 406–07, 664 S.E.2d 743, 747–
48 (2008).
                See W. Va. Code § 48-20-102(d) (“‘Child custody proceeding’ means a
                22

proceeding in which legal custody, physical custody or visitation with respect to a child is
an issue. The term includes a proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of parental rights and protection from
domestic violence in which the issue may appear. The term does not include a proceeding
involving juvenile delinquency, contractual emancipation or enforcement under part 20-
301, et seq.”).
                See W.Va. Code § 48–20–201(b) (“Subsection (a) of this section is the
                23

exclusive jurisdictional basis for making a child custody determination by a court of this
State.”).
                                              10
       (1) 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 six 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;
       (2) A court of another state does not have jurisdiction under subdivision (1)
       of this subsection, 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 20-207 or 20-208, and:
       (A) The child and the child’s parents, or the child and at least one parent or
       a person acting as a parent, have a significant connection with this state other
       than mere physical presence; and
       (B) Substantial evidence is available in this state concerning the child's care,
       protection, training and personal relationships;
       (3) All courts having jurisdiction under subdivision (1) or (2) of this
       subdivision have declined to exercise jurisdiction on the ground that a court
       of this state is the more appropriate forum to determine the custody of the
       child under section 20-207 or 20-208; or
       (4) No court of any other state would have jurisdiction under the criteria
       specified in subdivision (1), (2) or (3) of this subsection.

In the case In re K.R., 229 W. Va. 733, 735 S.E.2d 882 (2012) we summarized the

requirements of W. Va. Code § 48-20-201(a) as follows:

       to exercise jurisdiction to determine child custody, a court of this state must
       satisfy one of the four bases of jurisdiction set forth in Section 201(a). These
       four bases have been aptly summarized as 1) “home state” jurisdiction; 2)
       “significant connection” jurisdiction; 3) “jurisdiction because of declination
       of jurisdiction”; and 4) “default” jurisdiction. These jurisdictional bases do
       not operate alternatively to each other, but rather, in order of priority—
       reaching the next basis of jurisdiction only if the preceding basis does not
       resolve the jurisdictional issue.

In re K.R., 229 W. Va. at 740, 735 S.E.2d at 889 (internal citation omitted). We will

examine each of the factors set out under the statute.




                                             11
1. Home State Jurisdiction

              Pursuant to W. Va. Code § 48-20-201(a)(1), a circuit court has subject matter

jurisdiction under the UCCJEA if West Virginia is the “home state” of the child when an

abuse and neglect petition was filed. We set out the definition of home state in syllabus

point 3 of Rosen as follows:

       Pursuant to West Virginia Code § 48–20–102(g) (2001), “home state” means
       the state in which the 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 less than six months of
       age, 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. (Emphasis added.)

Relevant to the issue in this case is the observation in Rosen that, if a child custody

proceeding commences when a child is less than six months old, W.Va. Code § 48–20–

102(g) defines home state as the state in which the child lived from birth. See A.M. v.

Houston Cty. Dep’t of Human Res., 262 So. 3d 1210, 1217 (Ala. Civ. App. 2017) (“Because

the child was less than six months old on the date of the commencement of the dependency

proceeding, the child’s ‘home state’ is defined as ‘the state in which the child lived from

birth’ with a parent or a person acting as a parent.”); In Interest of Arnold, 532 S.W.3d

712, 717 (Mo. Ct. App. 2017) (“Because Baby Girl Arnold was less than six months of age

when the original petition was filed in this case, her home state was the state in which she

lived from birth with a parent or a person acting as a parent.”); Jamilah DD. v. Edwin EE.,

59 N.Y.S.3d 193, 194 (N.Y. App. Div. 2017) (“Where, as here, the child is less than six

months old, the home state is ‘the state in which the child lived from birth’ with a parent
                                             12
or a person acting as a parent.”); Ocegueda v. Perreira, 232 Cal. App. 4th 1079, 1085, 181

Cal. Rptr. 3d 845, 849 (2015) (“Thus, according to the plain language of the statute, the

period for determining the home state of a child who is less than six months of age starts

with the child’s birth.”).



              J.C. was born in Virginia on March 17, 2017. The record shows that J.C.

lived in Virginia from the date of his birth until on or about August 25, when Petitioner

brought him to West Virginia while en route to North Carolina.24 Therefore, when J.C.

was brought to West Virginia he was less than six months old. At the time the abuse and

neglect petition was filed on August 28, 2017, J.C. had been in West Virginia for only three

days. It is clear from these undisputed facts that Virginia was the home state of J.C. when

the abuse and neglect petition was filed.25 See Ex parte M.M.T., 148 So. 3d 728, 733 (Ala.




              24
                It appears that immediately after J.C. was born he lived in Virginia briefly
with an aunt, as a result of intervention by Virginia’s child protective services. Thereafter,
he lived with Petitioner and O.C.
              25
                 It was previously noted that at the preliminary hearing and adjudicatory
hearing the Petitioner argued that Virginia was the home state. However, by the time the
dispositional hearing took place, the Petitioner had relocated to North Carolina and gave
birth to another child in that state. Consequently, at the dispositional hearing Petitioner
argued that North Carolina was the home state. We need not resolve the issue of North
Carolina being the home state because of our determination that Virginia was the home
state. See In re B.Q.S., 2014 WL 2957451, at *5 (Tex. App. June 26, 2014) (observing that
“‘home state’ jurisdiction must be determined based on the circumstances that existed on
the date the suit was commenced.”); In re A.M., 224 Cal. App. 4th 593, 598, 168 Cal. Rptr.
3d 494, 498 (2014) (“Subject matter jurisdiction either exists or does not exist at the time
the action is commenced[.]”).
                                             13
Civ. App. 2014) (“It is undisputed that immediately before the commencement of the child-

custody proceeding …, the child was less than six months old and Colorado was the state

in which the child had lived from birth with the mother and the father. The child’s presence

in Alabama for less than one week before the father initiated the underlying action merely

constituted a ‘period of temporary absence’ from Colorado. Colorado is clearly the child’s

home state.”).



              In view of our conclusion that Virginia was J.C.’s home state when the abuse

and neglect petition was filed, it is clear that the circuit court could not rely upon W. Va.

Code § 48-20-201(a)(1) as a basis for subject matter jurisdiction.



2. Significant Connection Jurisdiction

              Even though West Virginia was not J.C.’s home state at the time the abuse

and neglect proceeding was commenced, the circuit court could nevertheless have subject

matter jurisdiction if the requirements of W. Va. Code § 48-20-201(a)(2) were satisfied.

As previously noted, this provision states the following:

       A court of another state does not have jurisdiction under subdivision (1) of
       this subsection, 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 20-207 or 20-208 and:
       (A) The child and the child’s parents, or the child and at least one parent or
       a person acting as a parent, have a significant connection with this state other
       than mere physical presence; and
       (B) Substantial evidence is available in this state concerning the child's care,
       protection, training and personal relationships.

                                             14
Under this provision of the statute subject matter jurisdiction may be obtained in one of

two ways. First, jurisdiction may be obtained if no other state has jurisdiction. We have

already determined that Virginia was the home state under W. Va. Code § 48-20-201(a)(1).

Therefore, this method of obtaining subject matter jurisdiction could not be relied upon by

the circuit court in this proceeding.



              The second way in which W. Va. Code § 48-20-201(a)(2) permitted the

circuit court to obtain subject matter jurisdiction, is if (1) a court in Virginia declined to

exercise jurisdiction, (2) J.C. and at least one parent had a significant connection with West

Virginia, other than mere physical presence; and (3) substantial evidence was available in

West Virginia regarding J.C.’s care, protection, training and personal relationships. See

G.P. v. L.M, 2016 WL 7015895, at *6 (Ohio Nov. 17, 2016) (applying these factors and

concluding that “Hawai’i declined jurisdiction of the custody dispute and as the trial court

stated, if Ohio did not assume jurisdiction, the family would be in ‘no man’s land.’”). As

to the first criteria, the record in this case does not disclose that a “court” in Virginia was

contacted and declined to exercise jurisdiction.26 DHHR and the Guardian ad Litem point

out that the child protective services in Virginia was contacted, and that it declined to get

involved with the case. Consequently, DHHR and the Guardian ad Litem take the position


             See W.Va. Code § 48-20-110(a) (2001) (“A court of this state may
              26

communicate with a court in another state concerning a proceeding arising under this
chapter.”).
                                              15
that Virginia declined jurisdiction through its child protective services agency.         The

problem with this argument is that the statute expressly required a “court” of Virginia

decline jurisdiction, not a Virginia child protective services agency. DHHR and the

Guardian ad Litem are asking this Court to add language to the statute that does not exist.

However, we have held that “[i]t is not for this Court arbitrarily to read into a statute that

which it does not say.” Syl. pt. 11, in part, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d

21, 24 (2013). Our law is clear in holding that “[w]here the language of a statute is free

from ambiguity, its plain meaning is to be accepted and applied without resort to

interpretation.” Syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).

The relevant language in W. Va. Code § 48-20-201(a)(2) is clear and unambiguous in

requiring a “court” of the child’s home state decline jurisdiction. See In re S.R., No. 16-

1139, 2017 WL 2628565, at *3 (W. Va. June 19, 2017) (Memorandum Decision)

(“Moreover, the circuit court contacted the Ohio Court of Common Pleas and that court

declined to exercise jurisdiction in this matter. Therefore, as established by the record, the

circuit court satisfied all of the statutory requirements … and was in full compliance with

the UCCJ[E]A.”). Consequently, we now hold that, one of the requirements under West

Virginia Code § 48-20-201(a)(2) (2001), for a circuit court to obtain subject matter

jurisdiction of a child whose home state is not West Virginia, is that a “court” of the home

state of the child must decline to exercise jurisdiction. This requirement is not satisfied by

evidence that some other person or entity in the child’s home state declined jurisdiction.



                                             16
              Our holding on this issue is consistent with the ruling in In re Joseph B., 2014

WL 5409006 (Cal. Ct. App. Oct. 24, 2014) (unpublished). The decision in Joseph B.

addressed the issue of contacting a court of the home state of a child as required under

California’s UCCJEA.27 In that case the mother, J.M., gave birth to a son, J.B., in February

of 2012 in Las Vegas, Nevada. In late December of 2012, J.M. moved to California with

J.B. to live with a cousin. In January of 2013, California’s child protective services

removed J.B. from J.M.’s custody because she was experiencing mental health issues—

including having thoughts of harming J.B. During the initial hearing in the case, the trial

court was informed that California’s UCCJEA was triggered because the child had only

been in the state for a few weeks. At some point the court contacted a law clerk of a court

in Nevada and was informed that there was no active case involving the child in Nevada.

Based upon contact with the law clerk in Nevada, the California trial court found that it

had subject matter jurisdiction under the UCCJEA. The court ultimately determined that

J.B. would be placed with his father in Texas. J.M. appealed the dispositional order, and

alleged on appeal that the trial court did not have subject matter jurisdiction because no

court in Nevada declined to exercise jurisdiction. The appellate court agreed as follows:

       In California, the UCCJEA is the exclusive means of determining subject
       matter jurisdiction in a custody dispute involving another jurisdiction.
       ***
       In our view, however, the record unquestionably establishes Nevada as the
       home state. [J.B.] lived there from his birth in February 2012 until late
       December 2012….


              27
                   California’s UCCJEA is similar to West Virginia’s statute.
                                              17
       ....

       We conclude the court violated the UCCJEA by making orders of a
       permanent nature without contacting Nevada authorities to inquire whether
       that state wished to assert its home state jurisdiction and commence a
       proceeding to protect [J.B.’s] interests. The court’s contact with a law clerk
       at a court in Nevada was insufficient to satisfy its duty.

In re Joseph B., at *4-6. See Rust v. Rust, 2018 WL 4760157, at *5 (Tex. App. Oct. 3,

2018) (“The only other basis upon which the trial court could acquire jurisdiction over the

custody suit is if the North Carolina court declined jurisdiction on the ground that Texas is

a more appropriate forum. However, the record contains no pleadings or proof to support

such a conclusion.”); G.S. v. R.L., 259 So. 3d 677, 681 (Ala. Civ. App. 2018) (“The record

in these cases does not contain any order from any Tennessee court declining to exercise

its home-state jurisdiction over the children[.]”); In re E.R., 28 Cal. App. 5th 74, 80, 238

Cal. Rptr. 3d 871, 876 (2018) (“California court obtained jurisdiction on July 19, 2017, the

date the Nevada court declined to exercise jurisdiction.”); In Interest of A.R., 902 N.W.2d

593 (Iowa Ct. App. 2017) (“The Nebraska court … declined jurisdiction on the ground it

determined Iowa is a more appropriate forum in accordance with the UCCJEA.”); Sergeant

v. DeRung, 213 So. 3d 423, 7–427 (La. App. 2016) (“given that there is no indication that

the Minnesota court has declined jurisdiction over the issue of the child’s …, it is clear that

the district court here does not have subject matter jurisdiction[.]”); S.C. Dep't of Soc.

Servs. v. Johnnie B., 2014 WL 2579937, at *2 (S.C. Ct. App. Feb. 21, 2014) (“Because the

Georgia superior court did not decline jurisdiction, South Carolina did not have jurisdiction

to issue an initial child custody determination.”).
                                              18
                Insofar as the record in the instant case clearly shows that no court in Virginia

declined to exercise jurisdiction in this matter, we need not address the remaining two

requirements of W. Va. Code § 48-20-201(a)(2). Failure to obtain a waiver of jurisdiction

by Virginia is sufficient to find that the circuit court did not have subject matter jurisdiction

under W. Va. Code § 48-20-201(a)(2).



3. Declination of Jurisdiction and Default Jurisdiction

                Pursuant to W. Va. Code § 48-20-201(a)(3) the circuit court could obtain

subject matter jurisdiction in this matter if a Virginia court declined to exercise jurisdiction.

We have already determined that no court in Virginia declined to exercise jurisdiction,

therefore the circuit court did not have subject matter jurisdiction under W. Va. Code § 48-

20-201(a)(3).



                The default jurisdiction provision contained in W. Va. Code § 48-20-

201(a)(4) would allow the circuit court to obtain subject matter jurisdiction if no court of

any other state had jurisdiction. Insofar as we have determined that Virginia was the home

state of J.C., this provision could not be relied upon by the circuit court. See Wolter v.

Fortuna, 27 Neb. App. 166, 177, 2019 WL 1907328 (2019) (finding no other court had

jurisdiction therefore “Nebraska has ‘last resort’ jurisdiction”).




                                               19
              In sum, there was no evidence in the record to show that any of the subject

matter requirements of W. Va. Code § 48-20-201(a) were satisfied.28 Consequently, the

circuit court lacked subject matter jurisdiction.29


              28
                 During oral argument the Guardian ad litem suggested that the termination
of Petitioner’s parental rights could be upheld under the temporary emergency jurisdiction
statute, W. Va. Code § 48-20-204. We disagree. Courts addressing temporary emergency
jurisdiction, under their version of the UCCJEA, have found that the power of a court under
this provision is limited. It has been held that “[b]y its very nature, temporary emergency
jurisdiction exists only for a limited period.” Beauregard v. White, 972 A.2d 619, 626 (R.I.
2009). It has also been recognized that the “exercise of temporary emergency jurisdiction
may not last until the trial court can enter an adjudicatory order finding a child dependent
and neglected.” In re State ex rel. M.C., 94 P.3d 1220, 1225 (Colo. App. 2004). See In re
Brode, 566 S.E.2d 858, 860 (N.C. Ct. App. 2002) (“When a court invokes emergency
jurisdiction, any orders entered shall be temporary protective orders only.”); Saavedra v.
Schmidt, 96 S.W.3d 533, 549 (Tex. App. 2002) (“A court’s exercise of temporary
emergency jurisdiction is temporary in nature and may not be used as a vehicle to attain
modification jurisdiction for an ongoing, indefinite period of time.”). Under the facts of
the instant case, the circuit court’s temporary emergency jurisdiction ended when DHHR
filed the abuse and neglect petition. See WP v. MS, 141 Haw. 246, 407 P.3d 1282 (Ct.
App. 2017) (“Temporary emergency jurisdiction under the UCCJEA is temporary and
limited and does not include the authority to make permanent custody determinations.”);
In re Gino C., 224 Cal. App. 4th 959, 965–66, 169 Cal. Rptr. 3d 193, 197 (2014)
(“temporary emergency jurisdiction does not confer authority to make a permanent child
custody determination.”); In re N.R., 2009 WL 1508568, at *14 (Neb. Ct. App. May 26,
2009) (“we conclude that while the juvenile court had temporary emergency jurisdiction
with regard to Ay.R., the juvenile court erred when it terminated Rony’s and Jessica’s
parental rights to Ay.R. without satisfying the requirements of the UCCJEA.”).
              29
                Petitioner also assigned error to the circuit court’s (1) failure to decline
jurisdiction, and (2) its determination that J.C. was abandoned. Because of our resolution
of the subject matter jurisdiction issue, we need not address Petitioner’s remaining two
assignments of error. However, we will note in passing that the abandonment finding was
problematic for several reasons, including the fact that it was not properly part of the
proceeding without an amendment to the abuse and neglect petition. See In re L.C., No.
18-0777, 2019 WL 181501, at *2 (W. Va. Jan. 14, 2019) (Memorandum Decision) (“the
DHHR did not amend the petition to include allegations of substance abuse. As such,
petitioner’s substance abuse did not form a basis for adjudication.”); In re B.A., No. 15-
0700, 2015 WL 7628728, at *3 (W. Va. Nov. 23, 2015) (Memorandum Decision) (“When
                                              20
                                              IV.

                                       CONCLUSION

              In view of the foregoing, we conclude that the circuit court did not have

subject matter jurisdiction in this proceeding.         Therefore its May 31, 2018, order

terminating the parental rights of Petitioner is void and unenforceable.30 See Jackson v.

Pszczolkowski, 2018 WL 5099642, at *2 (W. Va. Oct. 19, 2018) (Memorandum Decision)

(“Without subject matter jurisdiction, any ruling issued by the circuit court would have

been void.”); State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700,

619 S.E.2d 209, 213 (2005) (“The urgency of addressing problems regarding subject-

matter jurisdiction cannot be understated because any decree made by a court lacking

jurisdiction is void.”); Syl. pt. 5, in part, State ex rel. Hammond v. Worrell, 144 W.Va. 83,

106 S.E.2d 521 (1958), overruled on other grounds by Patterson v. Patterson, 167 W.Va.

1, 277 S.E.2d 709 (1981) (“A decree entered in a pending suit in which the court lacks

jurisdiction of the subject-matter is to that extent void[.]”).




the evidence indicated that petitioner likely abandoned that child, the circuit court correctly
allowed the DHHR to amend the petition a second time to include allegations of
petitioner’s abandonment. The circuit court also appropriately reopened the adjudicatory
hearing in January of 2015 to allow the DHHR to prove the allegations and afford petitioner
an opportunity to defend against the same.”).
              Our ruling necessarily extends to the termination of O.C.’s parental rights,
              30

even though he was not a party to this appeal.
                                               21
              Our conclusion that the circuit court did not have subject matter jurisdiction

to resolve the abuse and neglect petition does not end the matter. The record in this case

is sufficient for this Court to conclude that it is not in the best interest of J.C. to simply

return him to the Petitioner without any supervision, due to Petitioner’s mental health

issues.31 Therefore, on remand the circuit court is instructed to contact the appropriate

court in Virginia to ascertain whether that court is willing to exercise jurisdiction over J.C.

If the Virginia court is willing to take jurisdiction, then J.C. should be transferred to

Virginia as provided by law.



              If Virginia declines jurisdiction, then we summarily find that under the facts

of this case the circuit court would have subject matter jurisdiction under W. Va. Code §

48-20-201(a)(2). In the event the circuit court obtains jurisdiction because Virginia

declines jurisdiction, we do not believe that West Virginia is a convenient forum. 32 The

Petitioner’s reply brief indicated that J.C.’s sibling is with a foster family in North Carolina.




              31
                See W. Virginia Dep’t of Human Servs. v. La Rea Ann C.L., 175 W. Va.
330, 336, 332 S.E.2d 632, 637 (1985) (“We have repeatedly held that in contests involving
the custody of infants the welfare of the child is of paramount and controlling importance
and is the ‘polar star’ by which the discretion of the court will be guided.”).
              32
                 See W. Va. Code § 48-20-207(a) (“A court of this state 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 the motion of a party, the court’s own motion
or request of another court.”).
                                               22
The Petitioner also informed this Court that if J.C. is not returned to her, the North Carolina

foster family would be interested in adopting him. We believe that it is in the best interest

of J.C. to be united with his sibling in North Carolina.33 Consequently, if Virginia declines

jurisdiction the circuit court is authorized by this opinion to contact the appropriate court

in North Carolina and attempt to have that court take custody of J.C. for a disposition that

is consistent with that of his sibling.34



               Finally, if the court in North Carolina declines to take jurisdiction over J.C.,

the circuit court must hold a de novo adjudicatory and dispositional hearing to determine

whether J.C. was abused or neglected at the time the petition was filed.



                                                                 Reversed and Remanded.




               33
               During oral argument this Court was informed that arrangements have been
made to allow the siblings to visit with each other.
               34
                 We understand the problems the circuit court encountered when it
previously attempted to contact a court in North Carolina. We have worded the remand
instructions in such a manner as to inform the court in North Carolina that the circuit court
is authorized to communicate with it.
                                              23
