In the Matter of the WELFARE of Carl Otis MULLINS
No. 50185
Supreme Court of Minnesota
Sept. 12, 1980
298 N.W.2d 56
In summary, the question of whether police officers should be allowed to pursue a claim under the Dram Shop Act is a matter within the province of the legislature. Since legislative intent does not manifest a desire to preclude officers from recovering under the Act, I believe the so-called “fireman‘s rule” is inapplicable to this case.
meaning to “all its people except policemen” without some judicial calculation. Absent an express statutory exclusion, no other conclusion can be drawn but that policemen should be afforded the intended statutory protection. Comment, supra, at 247 (emphasis in original) (footnotes omitted).
Kuduk & Walling and Wright S. Walling, Janet L. Englund, Minneapolis, for respondent.
SHERAN, Chief Justice.
This appeal arises from a petition for a finding of dependency or neglect filed in the Hennepin County District Court by appellants Earl and Anne Krolick on behalf of their foster child, Carl Otis Mullins, against that child‘s natural father, respondent Carl E. Mullins. Appellants’ action was precipitated by an August 25, 1978, order of the Superior Court of San Diego, California authorizing the removal of their foster child from Minnesota and his placement in the home of his great aunt in San Diego. A temporary restraining order enjoining the child‘s removal issued from the Hennepin County District Court on September 1, 1978, and a temporary injunction was granted on
On July 29, 1975, the Superior Court of San Diego, California, finding that the conviction and incarceration of respondent for the murder of his wife rendered their five year-old child Carl Mullins without a parent or guardian available to exercise proper parental control, adjudged Carl Mullins dependent within the meaning of § 600(a) of the California Welfare and Institutions Code and placed him under the supervision of the Director of the San Diego County Department of Public Welfare. For current enactment, see
The disposition of this case depends on the construction we afford to the Uniform Child Custody Jurisdiction Act [UCCJA], applicable provisions of which we adopted
Appellants, in bringing their action in the Hennepin County District Court, sought a determination that Minnesota, to the exclusion of California, was the “home state” of their foster child,4 or alternatively, that the child has such “significant connections” with Minnesota as to afford this state primary jurisdiction.5 This interpretation would render California without jurisdiction to enforce its dependency decree ordering the removal of the child.
The district court, agreeing that the UCCJA governed the disposition of the case, concluded that because the Superior Court placed the child out of state pursuant to a finding of dependency and maintained its interest through quarterly assessments and annual hearings, it did not intend the child‘s sojourn to be permanent. Although the continuing presence of the child in appellants’ home might suggest a basis for jurisdiction, the strength of the child‘s connections with California required a contrary disposition. See
We agree with the district court that the analytical distinction between custody decrees arising from divorce and those resulting from dependency supports the retention of primary jurisdiction by the State of California and precludes any assertion of primary jurisdiction by the State of Minnesota. Although dependency custody decrees are indeed included within the ambit of the UCCJA, the Act itself is largely intended to address the problems resulting from interjurisdictional divorce proceedings. See generally Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.Rev. 1207 (1969). Unlike a dependency order, a typical divorce decree setting forth terms of child custody does not contemplate active supervision by the issuing court. Thus, when the parties to the decree move out of state, their nexus with that court attenuates. Should the need for modification or enforcement of the decree arise, once the child resides in the new locality for six months, the UCCJA permits a transfer of jurisdiction. The issuance of a divorce decree governing custody in one state followed by the move of the custodial parent to another state results in the new place of residence becoming the child‘s “home state” for the purposes of the Act. In contrast, a dependency adjudication involves a continuing relationship between the child and the court. The relationship does not attenuate over time but continues as the court periodically assesses
The jurisdictional concepts embodied in the UCCJA seek to assure informed decision making by restricting choice of forum to only those possessing optimum access to information about the child. As such, appellants argue that the State of Minnesota is better poised to entertain further court action. For the reasons considered below we cannot agree.
By virtue of the continuing involvement of the court of original jurisdiction in the matter at hand and the record of the initial dependency adjudication, the transcripts of the subsequent review hearings and reports of both the Hennepin County and San Diego County Departments of Public Welfare remain in California. Thus, were we to assert jurisdiction to the exclusion of California, we would be acting without benefit of a complete record. While we recognize that the child‘s long-term residency in Minnesota has likely generated information relevant to the child‘s ultimate disposition, such information is also available to the court in California through the mechanisms of the UCCJA. Under the Act, California may adduce the testimony of witnesses including parties and the child by deposition or otherwise in another state, order the appearance of parties outside the state, or request a court of record in another state to hold an evidentiary hearing on its behalf. UCCJA §§ 11, 18, 19 & Commissioners’ Note. See generally Bodenheimer, The Uniform Child Custody Jurisdiction Act, 3 Fam.L.Q. 304, 314-15 (1969).
Further supporting California‘s assertion of jurisdiction is
Finally, even if we were inclined to assert jurisdiction by deeming our contacts more significant, lack of standing would render appellants’ action nonjusticiable under our law.7 Although foster parents in California have standing as “de facto parents” to contest a foster child‘s removal from a foster home, in Minnesota foster parents are denied standing to litigate the disposition of a foster child. Compare Katzoff v. Superior Court, 54 Cal.App.3d 1079, 127 Cal. Rptr. 178 (1976) with In re the Welfare of E. G. and K. B., 268 N.W.2d 420 (Minn.1978).
Notwithstanding California‘s clear jurisdictional entitlement in the instant matter, the alternative tests advanced in the UCCJA suggest that two states with potentially competing interests could each individually satisfy the minimum requirements for assertions of jurisdiction. See UCCJA § 3, Commissioners’ Note. Because, however, the Act only intends primary jurisdiction to lodge in one state, UCCJA § 14 provides that modifications of custody decrees of another state may only be rendered when the original state no longer has or declines to assume jurisdiction. See
Zillmer, a pre-UCCJA decision, concerns a mother who attempted to execute a Kansas divorce decree awarding her custody of her children then living in Wisconsin with their grandparents. The grandparents, aware that the mother‘s mental health cast doubt upon her ability to care for the children, sued for a modification of decree in Wisconsin. The Wisconsin court, hearing convincing evidence that the mother was an incurable psychotic, determined nevertheless that although Wisconsin and Kansas shared concurrent jurisdiction, the connections of Kansas were superior; Wisconsin could not modify the decree. The court, however, found it “an appropriate exercise of the power of the Wisconsin court to permit the children to remain in the temporary custody of the grandparents pending [further proceedings in Kansas].” 8 Wis.2d at 663a-63b, 101 N.W.2d at 704. Following a rehearing in Kansas, the mother was denied custody.
In Fry v. Ball, a grandmother, faced with the prolonged detention of her son and his wife on drug charges, was appointed guardian of her 17-month-old grandchild by a court in California. Two years later, the grandparents moved to Colorado without obtaining leave of the California court. The child‘s parents, released from detention shortly thereafter, secured a termination of the guardianship. When the parents appeared in Colorado, the grandparents procured an ex parte order from a Colorado court restoring the status quo. Thereupon, the parents brought a petition in Colorado under the UCCJA to enjoin the enforcement of the ex parte order. The Colorado Supreme Court, observing that a strong argument could be made in support of an
Like the Supreme Courts of Wisconsin and Colorado in Zillmer and Fry, we are concerned that the actions of the San Diego Superior Court in this case were predicated in the absence of a complete record. Appellants, uninformed that respondent was petitioning for the termination of dependency at the annual review hearing held in 1978, concluded not unreasonably that the proceedings would be pro forma and their attendance unwarranted. In fact, because the San Diego Department of Public Welfare supported the transfer of the child from Minnesota, the hearing resulted in the court order authorizing Carl‘s removal from appellants’ home was in the nature of an ex parte proceeding. Neither the foster parents, the child, the Hennepin County social worker assigned to his case nor other Minnesota residents familiar with the situation were afforded the opportunity to make their views known.
Appellants volunteered in a moment of crisis to accept the custody of a five-year-old child when others would not or could not. The failure to furnish appellants with adequate notice that the child‘s status was subject to challenge cannot be ignored, nor can the unexplained conduct of the California authorities in seeking to remove the child from his school and return with him on the same day to San Diego without notifying the foster parents.
While we acknowledge that Minnesota is without primary jurisdiction to entertain appellants’ petition for a finding of dependency or neglect under the UCCJA, we also recognize, as did the Colorado Supreme Court in Fry v. Ball, that the UCCJA calls for “cooperation between courts of different states which will lead to an informed decision on custody.” 544 P.2d at 407. Because we presume that the San Diego Superior Court would not knowingly render a final decision in the absence of a complete record, under the ancillary jurisdiction afforded by the presence of the child and the foster parents in this state, we condition his return on the opportunity for a hearing in Minnesota. In so doing, we note that § 19 of the UCCJA would authorize the State of California to request a court of record in Minnesota to hold an evidentiary hearing germane to the question of the child‘s ultimate disposition. Therefore, contingent both upon appellants’ formal application to the district court and notification of the California authorities, we reinstate the temporary injunction preventing the child‘s removal from Minnesota and return this case to the court below for an evidentiary hearing as directed herein to commence within 60 days of the filing of this opinion. Within 60 days after that hearing, we direct appellants to petition the San Diego Superior Court for a review of its prior order. Should appellants fail to act within the stated time frame, the district court may upon appropriate motion dissolve the injunction.
Affirmed and remanded with special instructions.
AMDAHL and SIMONETT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
SCOTT, Justice (dissenting).
I respectfully dissent. The majority acknowledges “California‘s clear jurisdictional
As the majority concludes, under the UCCJA it is apparent that California has retained jurisdiction over the matter at hand. See
The majority is well-intentioned in attempting to provide the California court with additional information. However, if the California court deems it desirable to hold an evidentiary hearing in Minnesota, which it may very well do, the UCCJA would allow the hearing on motion of the California tribunal, not at the insistence of this court. UCCJA §§ 18-19; see
For the above reasons, I cannot join in the majority‘s remand of this case for the purpose of holding an evidentiary hearing. Instead, I would require appellants to petition the California court for the relief desired; an evidentiary hearing can then be held in Minnesota upon request of the California court. UCCJA §§ 18-19.