In re Interest of Wesley S., a child under 18 years of age, State of Nebraska v. Sandra S. and Lyle E.

Sandra S. appeals from the order of the county court for Dodge County, Nebraska, sitting as a juvenile court, denying her motion to dismiss this case for lack of jurisdiction, and finding that it had continuing jurisdiction over this case following its adjudication of her son, Wesley S., as a juvenile under Neb. Rev. Stat. § 43-247(3)(b) (Cum. Supp. 2002). For the reasons set forth herein, we affirm.

BACKGROUND

Wesley was born to Sandra and Lyle E. on June 5, 1991. Sandra and Lyle were never married. An order was filed on December 8, 2000, by the district court for El Paso County, Colorado, in which order the Colorado court awarded "joint legal parental responsibility" for Wesley to Sandra and Lyle and adopted a parenting plan placing physical custody of Wesley with Lyle during the school year and with Sandra during the summer months. Sandra was awarded parenting time on the first, third, and fifth weekends of every month during which Wesley resided with Lyle, and Lyle was awarded parenting time on the second and fourth weekends of the months during which Wesley resided with Sandra. The order also specified a parenting time schedule for holidays and other school break periods. The order provided that the parties could adjust the parenting time schedule by mutual agreement when such adjustment would be in Wesley's best interests, but it stated that any "significant and lasting modification" of parenting time should be made in writing and signed by both parties. The parties were also ordered to support the court's order and informed that "drastic action" would be taken in absence of that support.

Lyle married his wife, Dawn E., in Colorado on September 29, 1994. Lyle moved from Colorado to Nebraska in late 2000 or early 2001 and was residing in North Bend, Nebraska, with Dawn, Wesley, and Wesley's "siblings" (who are not clearly identified in the record and to whom we shall refer simply as Wesley's siblings) at the time of the events that led to Wesley's adjudication. Wesley began residing in North Bend and attending school there in the spring of 2001. Sandra was still residing in Colorado at the time of the current proceedings. The record in this case is largely devoid of evidence of the events transpiring between Wesley's relocation to Nebraska in 2001 and his adjudication by the Nebraska juvenile court in November 2002, but the record does show that Wesley exhibited behavioral problems in the fall of 2002 that led to the initiation of the present juvenile court case.

The State of Nebraska filed a juvenile petition on November 13, 2002, alleging that Wesley was a child as defined by § 43-247(3)(b). Specifically, the State alleged in paragraph 1 of the petition:

Wesley . . . is a child who, by reason of being wayward or habitually disobedient, is uncontrolled by his parent, guardian, or custodian[;] who deports himself so as to injure or endanger seriously the morals or health of himself or others; and who is habitually truant from home or school. to wit:

a. Between January, 2002 and November, 2002, Wesley . . . did sexually assault his six year old step-sister.

b. Attempted to make his six year old step-sister smoke marijuana.

c. Wesley . . . is aggressive towards his step-siblings.

(Handwritten overstrikes in original.) Portions of paragraph 1, namely subparagraphs a, b, and c, were crossed out by hand and a period was inserted by hand following the word "school," as indicated above. A handwritten notation to the right of the crossed-out paragraphs states that these changes to the petition were made "per agreement," and the changes appear to have been initialed by the prosecuting attorney. There is nothing on the face of the petition to indicate when these changes were made and nothing in the record to illuminate further the nature of such "agreement." The State alleged in paragraph 2 of the petition that Wesley was a child under 18 years of age residing in Nebraska and alleged in paragraph 3 that Lyle and Wesley's "mother," Dawn, were the persons having custody of Wesley.

Present at the initial adjudication hearing on November 13, 2002, were Wesley, Lyle, Dawn (who was again incorrectly identified as Wesley's natural mother), counsel for the State, Wesley's guardian ad litem, and a representative of the Nebraska Department of Health and Human Services (the Department). The parties at the hearing waived the reading of the petition, and the juvenile court informed the parties of the adjudication and dispositional processes. Wesley admitted the allegations contained in paragraphs 1, 2, and 3 of the petition. The court's November 14 journal entry regarding the November 13 hearing does not refer to the subparagraphs that were stricken from the petition, but clearly identifies the proceedings as falling under § 43-247(3). The court also scheduled a dispositional hearing for December 18, ordered the Department to prepare a court report and case plan, and placed temporary custody of Wesley with the Department, subject to reasonable visitation.

The record contains a handwritten letter and financial affidavit that Sandra apparently faxed to the juvenile court in early December 2002. In her letter, Sandra informed the court that she is Wesley's biological mother, and she requested immediate contact with Wesley and possible physical custody, pending the December 18, 2002, hearing. In addition, Sandra requested that she be considered in possible placement of Wesley with care in Colorado, and requested consideration of prior circumstances involving the parties, including court records and findings in Colorado.

Dispositional hearings were held on December 18, 2002, and January 22, 2003, wherein the juvenile court continued Wesley's placement with the Department and ordered visitation subject to Wesley's therapy needs. A court report and case plan dated December 16, 2002, was identified as exhibit 1 during the December 18 hearing, although the record is not clear as to whether it was actually offered and received into evidence. The December 16 court report and case plan was apparently also marked as an exhibit at the January 22 hearing, but was clearly not received by the court at that time due to Sandra's objections as to the "source of information." A copy of the December 16 court report and case plan is contained in the record before us, and it identifies a permanency objective of reunification, although it does not designate which parent. We also note that the court report and case plan shows that the Department had placed Wesley in foster care.

A hearing to consider Sandra's objections to the court report and case plan was initially scheduled for February 19, 2003, but was rescheduled for March 19. At the March 19 hearing, the juvenile court indicated that it was ready to address the court report and case plan, but Sandra's counsel indicated that, as a preliminary matter, Sandra wished to make an oral motion to "transfer jurisdiction" of the case to the district court for El Paso County, Colorado. In support of the motion, Sandra's counsel offered exhibit 2, a copy of the December 8, 2000, custody order of the Colorado court. The juvenile court received exhibit 2 over Lyle's objections. A chaotic discussion ensued following Sandra's oral motion, which was ultimately denied by the juvenile court. The juvenile court set a date for further hearing in anticipation of the filing of a written motion by Sandra. The juvenile court filed an "Order on Disposition/Review" following the March 19 hearing, directing that the "status quo" be maintained pending further hearing.

On April 30, 2003, Sandra filed a motion seeking to dismiss the case for lack of jurisdiction under the Nebraska Child Custody Jurisdiction Act or, alternatively, to have the juvenile court determine whether it had jurisdiction under the act, as well as to stay the juvenile court proceedings pending a determination as to jurisdiction. Sandra alleged that Colorado was Wesley's home state and that Lyle had unilaterally removed Wesley to Nebraska in violation of the December 8, 2000, Colorado custody order. Sandra further alleged that any jurisdiction in the Nebraska juvenile court was only of a temporary and emergency nature and that the juvenile court could only exercise permanent jurisdiction over the case if the Colorado court declined jurisdiction or failed to take appropriate action. Sandra asserted that the juvenile court needed to communicate with the Colorado court in order to reach a mutual decision on the appropriate forum for the case and to ascertain the Colorado court's position.

Sandra's motion to dismiss was heard by the juvenile court on April 30, 2003, the same day as it was filed, which motion also led to rather chaotic proceedings as evidenced by the bill of exceptions from this hearing. The court received into evidence a certified copy of the Colorado custody order; copies of In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992), and In re Interest of J.L.H., J.L.H., and R.H., 2 Neb. App. 40, 507 N.W.2d 641 (1993); a copy of the Nebraska Child Custody Jurisdiction Act; and a copy of the Colorado Uniform Child Custody Jurisdiction and Enforcement Act. Testimony was presented as indicated below, and the remainder of the hearing was consumed by a disjointed, and occasionally heated, colloquy between counsel and the court concerning the jurisdictional question before the court.

Sandra, who was living in Colorado Springs, Colorado, at the time of the April 30, 2003, hearing, testified that she had exercised her parenting time with Wesley before he was moved to Nebraska. Sandra confirmed that Wesley's removal did occur during the school year, that is, during Lyle's primary parenting time. Sandra testified that she never agreed to Wesley's removal from Colorado to Nebraska and that she "argued the situation" because she did not want Wesley to be away from herself and her other children, his presumably half brothers, of whom Sandra had similar joint custody. It is not clear from the record what, if any, contact Sandra maintained with Wesley between his removal to Nebraska and the fall of 2002, but Sandra did testify that she tried to continue having contact with Wesley. Sandra apparently maintained at least some telephone contact with Lyle, Dawn, or both. Sandra stated that she came to Nebraska approximately in October 2002, seeking assistance in having Wesley returned to Colorado, after she learned of certain problems with Wesley's behavior. Sandra did not learn that Wesley had been placed in the Department's temporary custody until around Thanksgiving 2002. Sandra indicated that she had been in contact with Wesley's therapists since his placement with the Department, that she had maintained contact with Department representatives, and that she was maintaining contact with Wesley "to the best of [her] ability." Again, the extent and nature of Sandra's contact with Wesley following his placement with the Department is not clear from the record.

Lyle testified that he moved from Colorado to Nebraska in October 2000 with Dawn and Wesley's siblings in order to provide support to Dawn's father, who was unwell at the time. Dawn contradicted Lyle's testimony regarding the date and testified that the move actually occurred on February 12, 2001. Lyle stated that he discussed the move with Sandra and that he left Wesley in Sandra's custody because Sandra did not want Wesley to leave Colorado at that time. Lyle testified that Wesley came to Nebraska approximately 4 months after Lyle's own move. Dawn's testimony places Wesley's removal in April or May 2001. Lyle stated that Sandra contacted him and asked him to take Wesley because he was "uncontrollable" and because she was ready to "relinquish custody to the State of Colorado." Dawn confirmed this testimony. Wesley began attending school in North Bend upon his removal to Nebraska. Lyle did not obtain a written agreement from Sandra modifying the Colorado custody order either when he left Wesley in Colorado with Sandra or when he moved Wesley to Nebraska. Lyle testified that he tried to provide contact between Wesley and Sandra after Wesley's removal to Nebraska, but Lyle did not specify the type or amount of contact he provided. Lyle testified that he and Dawn sought counseling for Wesley for his behavioral problems and that when their efforts "seemed to fail," they sought the involvement of the Department, law enforcement, and the court system.

The juvenile court entered an order on June 2, 2003, wherein it set forth the factual and procedural background of the present case, noting that Colorado was the state of original jurisdiction with regard to custody matters involving Wesley. The juvenile court determined that Lyle unilaterally removed Wesley from Colorado to Nebraska. Specifically, the court found that the juvenile petition in the present case was brought under § 43-247(3)(b) and that Wesley was adjudicated on November 13, 2002, "based solely upon [Wesley's] behavior and admission." The court also found that Lyle was in violation of the Colorado custody order, while Sandra was not. The court noted that Sandra was "not being held at fault" in the juvenile petition and found that Sandra was not required to have prior notice of any adjudication hearing. The court then concluded that the November 13, 2002, adjudication was neither null nor void. Finally, the court determined that it had valid jurisdiction and that Wesley was a juvenile as described under § 43-247(3)(b). The court did not set forth the reasoning behind its determination as to jurisdiction. The court ordered Wesley to remain in the care and custody of the Department and set a date for a further "adjudication" hearing. Sandra subsequently perfected her appeal to this court.

ASSIGNMENT OF ERROR

Sandra asserts, restated, that the juvenile court erred in determining that it had valid continuing jurisdiction over this case.

STANDARD OF REVIEW

In determining whether a court should entertain a child custody proceeding having interstate implications, the court should first determine whether it has jurisdiction and then determine whether it is appropriate to exercise jurisdiction. Paulsen v. Paulsen, 11 Neb. App. 582, 658 N.W.2d 49 (2003).

When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's; however, when a determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40 (2003); In re Interest of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999); Paulsen v. Paulsen, supra.

The question as to whether jurisdiction existing under the Nebraska Child Custody Jurisdiction Act (hereinafter NCCJA), Neb. Rev. Stat. §§ 43-1201 through 43-1225 (Reissue 1998), should be exercised is entrusted to the discretion of the trial court and is reviewed de novo on the record. In re Interest of Kelley D. & Heather D., supra; Paulsen v. Paulsen, supra. As in other matters entrusted to a trial judge's discretion, absent an abuse of discretion, the decision will be upheld on appeal. In re Interest of Kelley D. & Heather D., supra.

Statutory interpretation presents a question of law. In re Interest of Sabrina K., 262 Neb. 871, 635 N.W.2d 727 (2001). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003).

ANALYSIS

We initially note that the provisions of the NCCJA, §§ 43-1201 through 43-1225, were repealed by 2003 Neb. Laws, L.B. 148, § 105, and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Supp. 2003), effective January 1, 2004. However, the provisions of the NCCJA were in effect at the time the juvenile petition was filed in this case and are applicable to our resolution of this appeal. The NCCJA, Nebraska's version of the Uniform Child Custody Jurisdiction Act, speaks to the jurisdiction of courts of this state to modify child custody decisions initially determined in the courts of other states. Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000). The end goal of the NCCJA is that litigation concerning the custody of a child take place in the state which can best decide the case. Hamilton v. Foster, supra.

Application of NCCJA.

Lyle asserts that the NCCJA does not apply in this case because this is not a custody proceeding, but, rather, "a case which gave jurisdiction to the juvenile court because the actions of the minor [Wesley] would be considered a misdemeanor for purposes of Section 43-247(1) Neb. Rev. Stat. or a felony under Section 43-247(2) Neb. Rev. Stat. except for the fact of the age of the minor child." Brief for appellee at 6. In support of this assertion, Lyle relies on subparagraphs a through c, which were crossed out by hand in the juvenile petition, and the fact that Sandra acknowledges in her brief on appeal that the present juvenile case "grew from a sexual act between [Wesley] and his step-sister." Brief for appellant at 8. Lyle argues that the juvenile court should have taken jurisdiction of the matter under § 43-247(1) or (2) and that the court "acknowledge[ed] this" when it "kept jurisdiction of the matter rather than referring it to Colorado." Brief for appellee at 9.

We disagree with Lyle's portrayal of the juvenile court's retention of jurisdiction as an "acknowledgement" that the matter should have been adjudicated under § 43-247(1) or (2). We note that Lyle filed a motion on May 7, 2003, seeking clarification from the court as to which subsection of § 43-247 the court made its adjudication finding under. Lyle urged that the allegations contained in paragraph 1 of the petition, presumably the crossed-out portions of that paragraph, prohibited a finding under § 43-247(3), but would, instead, constitute findings under § 43-247(1) or (2).

We have examined the November 14, 2002, order, which was filed on a preprinted journal entry form and recorded the outcome of the November 13 initial adjudication hearing. The form clearly shows that it is intended for use with adjudications pursuant to § 43-247(3)(a) or (3)(b). The form contains no references to either § 43-247(1) or (2). The juvenile court found that Wesley was adjudicated under § 43-247(3), without specifying on the form whether the adjudication was under subsection (3)(a) or (3)(b).

In its June 2, 2003, order, the juvenile court included several affirmative statements, presumably in response to Lyle's motion seeking clarification as to which subsection of § 43-247 Wesley had been adjudicated under. The court stated that the juvenile petition was one under § 43-247(3)(b), that Wesley was adjudicated solely on his "behavior and admission," and that Wesley was a juvenile as described under § 43-247(3)(b). Lyle has not filed a cross-appeal disputing these findings by the juvenile court. Based upon the court's affirmative statements in its June 2 order and our own review of the record, we infer that prior to or at the time of the November 13, 2002, adjudication hearing, the juvenile petition was effectively amended by interlineation to remove subparagraphs a through c of paragraph 1, and that Wesley was not adjudicated based upon those subparagraphs of the petition. Accordingly, Lyle's assertions based upon the application of § 43-247(1) or (2) to this case are without merit.

As a case brought under § 43-247(3)(b), this case fits the definition of a "custody proceeding" under the NCCJA. Section 43-1202(3)(b) provides that the term "custody proceeding" shall mean "[p]roceedings in a juvenile court in which a person under the age of eighteen years is alleged to be a child as described in subdivision (3) of section 43-247." The petition in the present case moved the court to adjudicate Wesley as a child described under § 43-247(3)(b). The decisions made by the juvenile court in the course of these proceedings affected Wesley's legal and physical custody. Pursuant to § 43-1202(3)(b), the juvenile court was involved in a custody proceeding. That said, we turn our attention to the application of the NCCJA to the resolution of the question of jurisdiction.

Colorado's Initial Jurisdiction.

This court has stated:

One of the main objectives of the Uniform Child Custody Jurisdiction Act . . . , adopted by the Nebraska Legislature as the Nebraska Child Custody Jurisdiction Act . . . at Neb. Rev. Stat. § 43-1201 et seq. (Reissue 1988), is to prevent the jurisdictional confusion that can arise when a parent unilaterally removes a child from the state of a court that has rendered a decree concerning custody of the child. See Brigitte M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam. L.Q. 203 (1981). See, also, § 43-1201(1)(a). In such cases, "the continuing jurisdiction of the prior court is exclusive. Other states do not have jurisdiction to modify the [custody] decree. They must respect and defer to the prior state's continuing jurisdiction." Bodenheimer, supra at 214. This principle is incorporated into the NCCJA at §§ 43-1213 and 43-1214.

In re Interest of J.L.H., J.L.H., and R.H., 2 Neb. App. 40, 47-48, 507 N.W.2d 641, 646-47 (1993). See, also, § 43-1201(1)(e); Blanco v. Tonniges, 2 Neb. App. 520, 511 N.W.2d 555 (1994).

In the present case, the juvenile court found in its June 2, 2003, order that Lyle unilaterally removed Wesley from Colorado to Nebraska and that Lyle was in violation of the Colorado custody order. Those determinations by the juvenile court have not been challenged on appeal. Clearly, the district court for El Paso County, Colorado, had jurisdiction of Wesley and any issues involving his custody when the State of Nebraska filed its initial petition in these proceedings with the county court for Dodge County, Nebraska, sitting as the juvenile court, on November 13, 2002. Thus, the question becomes, what authority the juvenile court had to act on the juvenile petition filed by the State of Nebraska.

Nebraska's Exercise of Temporary Emergency Jurisdiction.

The juvenile court stated in its June 2, 2003, order that it placed temporary emergency custody of Wesley with the Department prior to the adjudication. Section 43-1203(1)(c) provides:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if . . . [t]he child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.

Sandra does not challenge the juvenile court's assumption of temporary emergency jurisdiction, but, rather, the court's ability to retain continuing jurisdiction following its temporary emergency placement of Wesley and its ability to render any permanent changes in custody. See, In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992); In re Interest of J.L.H., J.L.H., and R.H., supra.

Colorado's Loss of Continuing Exclusive Jurisdiction.

Section 43-1214(1) provides:

If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 43-1201 to 43-1225 or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction.

Section 43-1214 establishes a strong preference for the state which originally determined custody to exercise its continuing jurisdiction if the jurisdictional prerequisites enumerated in the NCCJA are satisfied. Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000).

Under § 43-1214, it must first be determined whether the issuing state appears to have continuing exclusive jurisdiction under the jurisdictional prerequisites enumerated in the Uniform Child Custody Jurisdiction Act. Hamilton v. Foster, supra. If the issuing state no longer has continuing exclusive jurisdiction, a custody decree may be modified by a Nebraska court if Nebraska itself has jurisdiction under the NCCJA. § 43-1214(1); Hamilton v. Foster, supra. When the issuing state no longer has continuing exclusive jurisdiction, § 43-1214(1)(a) is satisfied and there is no requirement that a petitioner also show that the issuing state "declined" jurisdiction. Hamilton v. Foster, supra. If the issuing state continues to have jurisdiction under the jurisdictional prerequisites enumerated in its version of the Uniform Child Custody Jurisdiction Act, that exclusive jurisdiction cannot be vitiated by another state. Hamilton v. Foster, supra. In such a case, the issuing state must first decline to exercise jurisdiction before a custody decree may be modified in another state. Id.

The state which initially enters a custody decree may lose continuing exclusive jurisdiction to modify the decree if it loses all or almost all connection with the child. Hamilton v. Foster, supra. Continuing exclusive jurisdiction is not without limits. Id. When a child and all parties have moved away from the state in which an initial custody decree was granted, deference to that state's continuing jurisdiction is no longer required. Id.

Generally, when another state has entered a child custody decree and one of the parents remains a resident of that state, the courts of this state are without jurisdiction to modify custody unless the first state affirmatively declines jurisdiction. Hamilton v. Foster, supra. However, the fact that a parent continues to reside in the issuing state is not alone sufficient to show that the issuing state retains continuing exclusive jurisdiction. Id. In order for the issuing state to retain continuing exclusive jurisdiction, not only must a parent or other contestant reside in that state, but the child must continue to have a significant connection with that state. Id.

The state in which the initial decree was entered has exclusive continuing jurisdiction to modify an initial custody decree if (1) one of the parents continues to reside in the decree state and (2) the child continues to have some connection with the decree state, such as visitation. Hamilton v. Foster, supra. The issuing court will continue to have modification jurisdiction so long as one of the parties remains in the state and so long as the child's contact with the state continues to be more than slight. Id. When all parties move out of the issuing state or when a parent remains in the issuing state but has no contact with the child, contact with the issuing state has become slight. Id. Even if a parent resides in the issuing state, that state may still lose continuing exclusive jurisdiction if that parent does not maintain contact with the child. Id.

In its June 2, 2003, order, the juvenile court determined that it had valid jurisdiction over this case, but the court did not elaborate the basis for its finding. Upon our review of the record, we find nothing to suggest that the juvenile court ever communicated with the Colorado court after being made aware of the existence of the Colorado custody order or that the Colorado court ever declined to assume jurisdiction. Arguably, the juvenile court's finding of jurisdiction was based upon a determination, although not explicitly stated in the June 2 order, that the Colorado court had lost its continuing exclusive jurisdiction to modify the Colorado custody order. In such a case, there is no requirement to show that the State of Colorado "declined" jurisdiction. See Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000). Determination of whether the Colorado court lost its continuing jurisdiction is a factual matter, meaning that the juvenile court's decision on the issue will be upheld unless its factual findings concerning jurisdiction are clearly incorrect. The difficulty in this case, of course, lies in the fact that the juvenile court made no explicit factual findings concerning jurisdiction.

Clearly, Sandra continues to reside in Colorado. This fact alone, however, is not sufficient to show that the Colorado court retained continuing exclusive jurisdiction over custody matters concerning Wesley. It must also be shown that Wesley continues, or fails to continue, to have a significant connection with the State of Colorado, such as visitation. The Colorado custody order provided for Sandra to have visitation with Wesley on alternating weekends during Lyle's primary parenting time and to have primary parenting time during the summer months, during which Lyle would have visitation on alternating weekends. We find nothing in the limited information contained in the record on appeal to suggest that Sandra exercised her right to primary parenting time in either the summer of 2001 or the summer of 2002, nor do we find anything to suggest that Wesley visited Sandra in Colorado after Wesley was removed from Colorado in early 2001. Sandra testified that she did not agree to Wesley's removal to Nebraska, in direct contrast to Lyle's and Dawn's testimony. Sandra testified that she tried to continue having contact with Wesley after his removal, but she did not elaborate on the nature and extent of this contact. Lyle testified that he tried to provide contact between Wesley and Sandra after Wesley's removal to Nebraska, but Lyle did not specify the type or amount of contact he provided. Based upon the record before us on appeal, we conclude that the juvenile court would not have been clearly wrong in finding that Wesley no longer had a significant connection with the State of Colorado, and thus, that the Colorado court had lost its continuing exclusive jurisdiction to modify the Colorado custody order.

Basis for Nebraska's Jurisdiction to Modify.

After determining that the Colorado court no longer had continuing exclusive jurisdiction, the juvenile court was required to consider whether the juvenile court itself had jurisdiction under the NCCJA. § 43-1214(1)(b). In examining the juvenile court's determination that it had jurisdiction, we turn again to § 43-1203(1), which provides that "[a] court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree" if certain criteria in at least one of the various subdivisions are met. We conclude that subdivisions (1)(a) and (b) of § 43-1203 would give the courts of this state jurisdiction in the case at hand. We note that the emergency jurisdiction provided under § 43-1203(1)(c), which we addressed above, is by its very nature limited, and for the juvenile court to continue to exercise jurisdiction over Wesley, it must do so under another provision of the NCCJA. See In re Interest of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999).

Subdivision (1)(a) of § 43-1203 provides for jurisdiction in Nebraska courts if this state "is the home state of the child at the time of commencement of the proceeding." The "home state" is the state where a child has lived during at least 6 consecutive months preceding the commencement of the action. § 43-1202(5). Wesley had been a resident of Nebraska exclusively and continuously for at least 6 consecutive months prior to the filing of the juvenile petition on November 13, 2002.

Subdivision (1)(b) of § 43-1203 provides for jurisdiction in Nebraska courts if

[i]t is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

The record shows that Lyle began living in Nebraska in late 2000 or early 2001. Wesley began residing and attending school in Nebraska in the spring of 2001. Wesley also has siblings living in Nebraska, although the record is not clear as to whether they are stepsiblings, half siblings, or some combination thereof. The record does not reveal whether Wesley or Lyle have any other relatives living in Nebraska, although the record indicates that Dawn's father lives in Nebraska (or, at least, that he did so at the time Lyle and Dawn moved to Nebraska). After his removal to Nebraska, Wesley received counseling on a periodic basis for behavioral problems and was hospitalized in Nebraska on two occasions for mental and behavioral problems. Wesley has also undoubtedly developed working relationships with various therapists, counselors, and caseworkers since his placement in the Department's temporary custody. The record before us, minimal as it is, shows that Wesley and Lyle have a significant connection with the State of Nebraska and that there is available in this state substantial evidence concerning Wesley's present or future care, protection, training, and personal relationships.

Accordingly, we conclude that the juvenile court was not clearly incorrect in finding it had jurisdiction.

Juvenile Court's Decision to Exercise Its Jurisdiction.

Sandra argues that the juvenile court's decision to exercise jurisdiction is contrary to the purposes of the NCCJA and cites the juvenile court's findings--that Lyle unilaterally removed Wesley to Nebraska and that Lyle was in violation of the Colorado custody order--and § 43-1208 in support of her argument. Section 43-1208(2) provides:

Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.

In its June 2, 2003 order, the juvenile court noted the provision of the Colorado custody order stating that any significant and long-lasting modification of Lyle and Sandra's parenting time should be made in writing and signed by both Lyle and Sandra. The juvenile court determined that Lyle "unilaterally removed" Wesley from Colorado to Nebraska and found that Lyle was in violation of the Colorado custody order. It is true that one of the primary goals of the NCCJA is to avoid forum shopping. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996); Dorszynski v. Reier, 6 Neb. App. 877, 578 N.W.2d 457 (1998). Section 43-1201(1)(e) indicates that one of the general purposes of the NCCJA is to "[d]eter abductions and other unilateral removals of children undertaken to obtain custody awards." In the present case, there is no showing that Lyle brought Wesley to Nebraska solely, or even primarily, to frustrate Sandra's efforts to assert her primary parenting time and visitation rights. Lyle's and Dawn's testimony shows that they moved from Colorado to Nebraska in either late 2000 or early 2001 to address issues with Dawn's father and that Wesley was left in Colorado in Sandra's care. Lyle's and Dawn's testimony further shows that Sandra subsequently had difficulty controlling Wesley and that she asked them to take Wesley to Nebraska rather than have her turn custody of Wesley over to the State of Colorado. Lyle moved Wesley to Nebraska during a period when Lyle had physical custody. Sandra testified that she did not agree to the removal of Wesley from Colorado to Nebraska; however, Sandra acknowledged that Wesley was removed to Nebraska during Lyle's primary parenting time. We note that there is no evidence to suggest that Sandra brought any type of action in the Colorado court to enforce its custody order. We further note that the petition in the present case was not one filed by Lyle for a modification of the Colorado custody order, but, rather, one filed by the State of Nebraska for the adjudication of Wesley as a juvenile described under § 43-247(3)(b). Regardless of what the juvenile court intended by its findings that Lyle unilaterally removed Wesley from Colorado to Nebraska and that Lyle violated the Colorado custody order, our de novo review leads us to conclude that the juvenile court's exercise of jurisdiction in this matter was consistent with Wesley's best interests. We further conclude that the juvenile court acted within its discretion in exercising its jurisdiction with respect to the provisions of § 43-1208.

We also conclude that the juvenile court's exercise of jurisdiction would not contravene the purposes of the NCCJA. We note Sandra's statements to the juvenile court that litigating this matter in Nebraska created a financial hardship for her; however, jurisdiction exists only if it is in the child's interests, not merely the interests or convenience of the feuding parties, to determine custody in a particular state. Paulsen v. Paulsen, 11 Neb. App. 582, 658 N.W.2d 49 (2003). We conclude upon our de novo review that the juvenile court did not abuse its discretion in deciding to exercise continuing jurisdiction in this case.

* * *

Click the case caption above for the full text
of the Court's opinion.

We conclude that the juvenile court was not clearly incorrect in finding it had continuing jurisdiction under the NCCJA and that it did not abuse its discretion in exercising such jurisdiction.

Affirmed in favor of Plaintiff.

Unavailable

Unavailable

Reported by L. Hargraves