In re M. B.
Dated: August 25, 2010
WHITMORE, Judge.
{¶1} Appellants, Dianne and Frederic B. (“Grandparents”), appeal from a judgment of the Summit County Court of Common Pleas that dismissed their complaint for legal custody of their granddaughter based on the court’s conclusion that it lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). This Court reverses and remands.
I
{¶2} Grandparents are the parents of Tressa Smith (“Mother”), who is the mother of the child at issue in this case, M.B. M.B. was born in Ohio on January 9, 2002 and continued to reside in the Akron area for the next seven years. Mother and M.B. lived with Grandparents for approximately four years while Mother was attending nursing school. At other times, Mother and M.B. lived elsewhere in the area. The role that Grandparents played in M.B.’s life is not clear from the record.
{¶4} On November 7, 2009, Mother and her husband got into a four-hour fight with her husband’s parents about keeping their food in his parents’ refrigerator. During the argument, the husband’s father threatened Mother with physical harm. Although she later claimed that she was not frightened by the threats, Mother called Grandparents the next day and asked them to drive from Ohio to South Carolina to bring her and the children back to Grandparents’ home. While Grandparents were driving to South Carolina, however, Mother called to tell them that she and the baby were staying in South Carolina with her husband, but she wanted them to take M.B. to Ohio. The parties dispute whether Mother asked Grandparents to take M.B. on a long-term basis or merely for a one-week vacation.
{¶5} After M.B. arrived in Ohio, she told Grandparents that she had been suffering from stomach aches and headaches almost every day and they could see that her eczema had flared up. They believed that M.B. had not been receiving adequate food or medical care while in South Carolina and that the worsening of her skin condition was due to stress. Mother insisted that she was giving M.B. adequate care and that M.B.’s headaches were due to allergies.
{¶6} On November 16, 2009, Grandparents filed a complaint in Summit County for legal custody of M.B. They also sought temporary emergency custody based on their allegations that M.B. was at risk of harm if she returned to South Carolina with Mother. The magistrate
{¶7} Mother and Grandparents appeared at the hearing. Following the hearing, the magistrate continued the emergency order of temporary custody, reasoning that it was in M.B.’s best interest. Mother filed a motion to set aside the magistrate’s order, which the trial court granted. The trial court concluded that it lacked jurisdiction to hear this action. Consequently, it ordered that M.B. be returned to Mother’s custody and dismissed the case. Grandparents appealed and this Court issued a stay of the trial court’s order removing M.B. from their custody. They have assigned one error for review.
III
Assignment of Error
“THE TRIAL COURT ERRED IN DISMISSING APPELLANTS’ COMPLAINT FOR CUSTODY ON THE GROUNDS THAT OHIO DID NOT HAVE JURISDICTION OVER THE MINOR CHILD UNDER
R.C. 3127.15 [.]”
{¶8} In their sole assignment of error, Grandparents argue that the trial court erred in concluding that it lacked jurisdiction to hear their complaint for legal custody and by dismissing this case on that basis. We agree.
{¶9} Because this custody dispute is between parties living in different states, the trial court necessarily looked to Ohio’s codification of the UCCJEA to determine whether Ohio had jurisdiction. The magistrate issued his temporary order pursuant to
{¶11} However, there is no language in the statute to support the trial court’s construction. See Micah M. v. Arizona Dept. of Economic Security (May 13, 2008), Ariz. App. Div. 2, No. 2 CA-JV 2008-0006, at *3 (construing identical language in Arizona’s version of the UCCJEA temporary emergency jurisdiction provision). In fact, temporary emergency jurisdiction will typically be invoked in just this type of case, in which a child is visiting from another state and an in-state relative becomes aware that the child may be at risk of mistreatment or abuse if she returns home. See, e.g., id.; MacDougall v. Acres (1998), 427 Mass. 363. Courts in other states also have applied their version of this emergency jurisdiction provision in cases in which the threat of abuse was in another state and one of the parents fled with the child to escape the abuse. See, e.g., Saavedra v. Schmidt (Tex.App.2002), 96 S.W.3d 533; Campbell v. Martin (Me.2002), 802 A.2d 395. Consequently, the trial court erred in vacating the magistrate’s temporary emergency custody order simply because the threat of mistreatment did not occur in Ohio.
{¶12} Although the magistrate had not yet addressed the issue of whether Ohio or South Carolina had ongoing jurisdiction in this case, the trial court did. The trial court found that South
{¶13} It is also undisputed, however, that M.B. had not resided in Ohio for the six consecutive months immediately proceeding the filing of this action. Therefore, it was necessary for the trial court to look further into the requirements of
{¶14} In addition to “home state” jurisdiction as defined above,
{¶16}
“(a) The person has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence from the child, within one year immediately before the commencement of a child custody proceeding; and
“(b) The person has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”
{¶17} The parties did not present evidence to establish that Grandparents satisfied these criteria, nor did the trial court make any finding on that issue. In addition to the lack of evidence in the record, this Court would exceed its role as a reviewing court if it attempted to make that finding in the first instance. See Valley City Electric Co., Inc. v. RFC Contracting, Inc., 9th Dist. No. 09CA009608, 2010-Ohio-964, at ¶20.
{¶18} Alternatively, Grandparents maintain that Ohio has jurisdiction pursuant to
“(2) A court of another state [is not the home state] *** and both of the following are the case:
“(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.
“(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.”
{¶19} Although Grandparents point to evidence in the record that M.B. has a connection to Ohio, the parties have not had the opportunity to present evidence directly on these issues, nor has the trial court made the requisite findings of whether M.B. has a “significant connection” with this state and/or whether there is “substantial evidence” in this state concerning her “care, protection, training, and personal relationships.”
{¶20} Because the trial court erred in dismissing this case for lack of jurisdiction, the assignment of error is sustained. This matter is remanded to the trial court to determine whether Ohio has jurisdiction pursuant to alternate provisions of
III
{¶21} Grandparents’ assignment of error is sustained. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
BAIRD, J.
CONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)
APPEARANCES:
JOY S. WAGNER, Attorney at Law, for Appellant.
HANK F. MEYER, Attorney at Law, for Appellee.