In re Z.H.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term FILED
June 11, 2021
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS

No. 20-0377 OF WEST VIRGINIA

_____________________

IN RE: Z.H.

___________________________________________________________

Appeal from the Circuit Court of Mercer County
Honorable Mark E. Wills, Judge
Juvenile Action No. 18-JA-121

VACATED AND REMANDED WITH DIRECTIONS
_________________________________________________________

Submitted: March 24, 2021
Filed: June 11, 2021

John G. Byrd, Esq. Patrick Morrisey, Esq.
Mercer County Public Attorney General
Defender Corp. S. L. Evans, Esq.
Princeton, West Virginia Assistant Attorney General
Counsel for Petitioner Mother Charleston, West Virginia
Counsel for Respondent W.Va.
Dept. of Health and Human
Resources

Andrea P. Powell, Esq.
Princeton, West Virginia
Guardian ad Litem

JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE WALKER dissents and reserves the right to file a separate opinion.
 SYLLABUS OF THE COURT

1. “Where 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).

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.” Syl.

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

3. “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.” Syl. Pt. 5, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743

(2008).

4. “‘Lack of jurisdiction may be raised for the first time in this court, when it

appears on the face of the bill and proceedings, and it may be taken notice of by this court

on its own motion.’ Syllabus Point 3, Charleston Apartments Corp. v. Appalachian Elec.

Power Co., 118 W. Va. 694, 192 S.E. 294 (1937).” Syl. Pt. 3, Lewis v. Munic. of

Masontown, 241 W. Va. 166, 820 S.E.2d 612 (2018).

i
 5. All courts must be watchful for jurisdictional issues arising under the

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), West Virginia

Code §§48-20-101 to -404 (2001). Even if not raised by a party, if there is any question

regarding a lack of subject matter jurisdiction under the UCCJEA then the court should sua

sponte address the issue as early in the proceeding as possible.

6. “To determine whether a state qualifies as a child’s ‘home state’ for

purposes of determining initial jurisdiction under W. Va. Code § 48-20-201(a) (Repl. Vol.

2009), a court must analyze whether any state qualified as the child’s ‘home state’ at any

time within the six months immediately preceding commencement of the action.” Syl. Pt.

3, In re K.R., 229 W. Va. 733, 735 S.E.2d 882 (2012).

7. When determining whether a court has home state subject matter

jurisdiction over the custody of a child who is less than six months old, West Virginia Code

§§ 48-20-102(g) (2001) and 48-20-201(a)(1) (2001) direct the court to consider where the

child lived from the child’s birth to the commencement of the proceeding in which custody

is at issue. Events prior to birth, and the child’s living arrangements after the

commencement of the proceeding, are not relevant to the determination of whether the

court has home state subject matter jurisdiction.

ii
 8. A newborn child’s hospital stay incident to birth is insufficient to confer

home state subject matter jurisdiction pursuant to West Virginia Code §§ 48-20-102(g)

(2001) and 48-20-201(a)(1) (2001).

9. One of the requirements under West Virginia Code § 48-20-201(a)(3)

(2001) for a court to obtain subject matter jurisdiction over an initial child custody

determination where another state has either home state jurisdiction or significant

connection jurisdiction, is that a court of the other state must decline to exercise

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

in the other state has declined jurisdiction.

10. “A decree entered in a pending suit in which the court lacks jurisdiction

of the subject-matter is to that extent 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).

iii
HUTCHISON, Justice:

The petitioner mother, C.S., appeals the Circuit Court of Mercer County’s

March 5, 2020, order terminating all her rights to her infant son, Z.H., in an abuse and

neglect proceeding. The petitioner contends that the circuit court lacked subject matter

jurisdiction over this case pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”), 1 and even if there was jurisdiction, the court erred by not

imposing a disposition less than termination of all of her rights. The respondents herein,

the West Virginia Department of Health and Human Resources (“DHHR”) and the child’s

guardian ad litem (“GAL”), contend that there was no error.

Having considered the parties’ arguments, the appendix record on appeal,

and the pertinent authorities, we conclude that the circuit court lacked subject matter

jurisdiction under the provisions of the UCCJEA. The State of Virginia has subject matter

jurisdiction over the custody of this child, and there is no evidence that a Virginia court

ever declined to exercise that jurisdiction. We therefore vacate the circuit court’s final order

and remand this case with directions for the circuit court to contact a Virginia court to

inquire about the declination of jurisdiction and to take further actions in accordance with

this opinion.

1
The UCCJEA, which is codified in chapter 48, article 20 of the West Virginia
Code, is discussed in detail in the discussion section of this opinion, infra.
1
 I. Facts and Procedural Background

Z.H. was born on May 8, 2018, at the Bluefield Regional Medical Center in

Bluefield, Mercer County, West Virginia. Because the petitioner mother used narcotics

while pregnant, Z.H. was born drug exposed and required in-patient medical care. The

putative father is the petitioner’s boyfriend, L.H. On May 9, the petitioner cut off the

hospital’s infant security bracelet and attempted to remove Z.H. from the hospital but was

stopped by hospital staff. That same day, the DHHR assumed emergency legal custody of

the child.2 These events were reported to the Circuit Court of Mercer County, West

Virginia, which immediately held an emergency hearing and found probable cause to

believe the child was in imminent danger of being deprived of medical care. That same

day, May 9, the court entered an order ratifying the temporary emergency custody,

appointing counsel, and setting a preliminary hearing date and time.

2
West Virginia Code § 49-4-303 (2015) authorizes a DHHR child protective
services (“CPS”) worker to take a child into his or her emergency custody prior to the filing
of an abuse and neglect petition if the child is in an emergency situation that constitutes an
imminent danger and the worker has probable cause to believe that the child will suffer
additional abuse or neglect or will be removed from the county before an abuse and neglect
petition can be filed. When an “emergency removal” of a child occurs pursuant to this
statute, the worker must “forthwith appear” before a court or referee to obtain an order
ratifying the emergency removal “pending the filing of a petition” for abuse and neglect.
Id. The statute further provides that the child will be returned to the parent’s custody unless
the DHHR files a petition for abuse and neglect [see West Virginia Code § 49-4-601
(2019)] within two judicial days and custody is transferred to the DHHR pursuant to West
Virginia Code § 49-4-602 (2015).
2
 On May 10, the DHHR filed an abuse and neglect petition 3 with the circuit

court alleging that Z.H. was abused and/or neglected because of the petitioner’s drug use

during pregnancy and because of medical neglect based upon the attempt to remove the

newborn from the hospital during treatment. In the petition, the DHHR stated that the

petitioner and L.H. are residents of Tazewell County, Virginia; nonetheless, the petition

asserted that the circuit court had jurisdiction over this matter “because [West Virginia] is

the home state of the child at the time of the commencement of this proceeding.”

The abuse and neglect petition also reported that the petitioner and L.H. were

the respondents in a prior child abuse and neglect case in Giles County, Virginia, in which

their rights to another child were involuntarily terminated. The petition was subsequently

amended to provide additional information about the Virginia case, including that the

involuntary termination of parental rights to the other child was based upon the parents’

drug use and had been finalized just two months before Z.H. was born. The circuit court

held a preliminary hearing on May 23, affirmed its prior finding of imminent danger,

scheduled a meeting of the multi-disciplinary treatment (“MDT”) team, and scheduled the

case for an adjudicatory hearing.

3
See W. Va. Code § 49-4-601 (specifying procedures for abuse and neglect
petition).
3
 When the DHHR was granted emergency legal custody of Z.H., the

petitioner and L.H. returned home to Bluefield, Tazewell County, Virginia. 4 The child

remained in the hospital for several more weeks. Upon discharge from the hospital, Z.H.

was placed with foster parents in West Virginia. The child has continuously resided with

foster parents throughout this abuse and neglect proceeding.

The circuit court held an adjudicatory hearing in August of 2018, where the

petitioner and L.H. were adjudicated as abusing parents. 5 The petitioner received both a

post-adjudicatory improvement period and a post-dispositional improvement period.

During dispositional hearings in July 2019 and January 2020, the DHHR presented

evidence that the petitioner had failed to cooperate with drug screens and treatment; did

not consistently participate in services, even when providers went to her home; never

provided proof of a prescription for the Suboxone that she was taking; never obtained

regular employment; did not obtain a required psychological evaluation; did not

consistently visit with Z.H.; missed hearings and MDT meetings; and continued to have

contact with L.H., whose rights had already been terminated. The DHHR also asserted that

the petitioner refused to acknowledge the conditions of abuse and neglect. The petitioner

testified and denied most of the DHHR’s assertions. She stated that she did not drug test in

4
Bluefield, West Virginia, and Bluefield, Virginia, are adjacent towns that lie within
different states.

The circuit court later terminated all rights of the putative father, L.H., and of any
5

unknown/unnamed father. L.H. did not appeal.
4
this proceeding because she was unable to produce a urine sample while being observed;

she was obtaining weekly drug treatment at a Suboxone clinic in the State of Tennessee;

she earned money through various internet sites and applications; she missed hearings and

MDT meetings for this case because the DHHR failed to renew her bus pass; and the

service providers who were hired to drive her to visits with the child had stopped showing

up. The petitioner never produced any records or other corroborating evidence that she was

being treated at a Suboxone clinic in Tennessee, and she never produced any records of

any drug screens given at a clinic. She asserted that she removed the hospital security

bracelet from the newborn Z.H. because she was unhappy with the medical care being

rendered and desired to go to a different hospital, but she had not made any arrangements

with another hospital or other medical provider to render care to the drug exposed infant.

There is no indication in the appellate appendix record that any party raised

with the circuit court the issue of whether the court had subject matter jurisdiction over this

case. Nonetheless, evidence relevant to this issue was presented. A DHHR child protective

services (“CPS”) worker testified during the adjudicatory hearing that the petitioner resided

in a particular apartment complex in the State of Virginia. 6 The CPS worker also testified

that she did not know of any connections that the petitioner had with West Virginia other

than being at Bluefield Regional Hospital to give birth. Similarly, the petitioner testified

during the adjudicatory hearing that she lived in Bluefield, Virginia; neither she nor the

6
It was undisputed that the putative father, L.H., also resided in Virginia.
5
child had ever lived in West Virginia; and she had no connections with West Virginia other

than going to the hospital in Bluefield, West Virginia. The petitioner also testified about

taking a bus from her home in Virginia to attend some of the West Virginia court hearings.

Furthermore, during the adjudicatory hearing, the CPS worker was asked whether “any

other jurisdiction respond[ed] to exercise jurisdiction over the matter?” She answered, “to

my knowledge, no.” However, there is no indication in the record that a court in Virginia

was ever contacted regarding the exercise of jurisdiction.

Ultimately, the circuit court determined that the petitioner failed to comply

with her improvement periods, many of the services offered to her, and her visitation

opportunities. The court found that the petitioner was “manipulative” and gave “an excuse

for everything[.]” Upon concluding that termination of the petitioner’s parental, custodial,

and guardianship rights was necessary for the welfare of the child, the court terminated

these rights by order entered with the circuit clerk on March 5, 2020. 7 The petitioner is

now appealing that order to this Court.

II. Standard of Review

The dispositive issue in this appeal is the question of subject matter

jurisdiction under the UCCJEA. “[J]urisdictional issues are questions of law[.]” State ex

7
See W. Va. Code § 49-4-604(c)(6) (2020) (specifying circumstances for
termination of parental rights).
6
rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 343, 801 S.E.2d 216, 221

(2017) (citation omitted). “Where 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);

accord Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

(recognizing that in appeals of abuse and neglect orders, questions of law are subject to de

novo review). With this plenary standard in mind, we consider the parties’ arguments.

III. Discussion

In her first assignment of error, the petitioner contends that the circuit court

erred by failing to order a disposition less restrictive than the full termination of her rights.

She suggests that the circuit court could have terminated only her guardianship and

custodial rights, while leaving her parental rights in place. In her second assignment of

error, the petitioner argues that the circuit court lacked subject matter jurisdiction over this

case pursuant to the provisions of the UCCJEA, West Virginia Code §§ 48-20-101 to -404

(2001). She concedes that to protect the child from immediate harm, the circuit court had

temporary jurisdiction pursuant to a provision in the UCCJEA to allow the DHHR to

assume emergency custody. See W. Va. Code § 48-20-204(a) (2001). 8 However, she argues

8
West Virginia Code § 48-20-204, titled “Temporary emergency jurisdiction,”
provides:

(a) A court of this state has temporary emergency
jurisdiction if the child is present in this state and the child has
7
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.
(b) If there is no previous child custody determination
that is entitled to be enforced under this chapter and a child
custody proceeding has not been commenced in a court of a
state having jurisdiction under sections 20-201 through 20-
203, inclusive, of this article, a child custody determination
made under this section remains in effect until an order is
obtained from a court of a state having jurisdiction under
sections 20-201 through 20-203, inclusive, of this article. If a
child custody proceeding has not been or is not commenced in
a court of a state having jurisdiction under sections 20-201
through 20-203, inclusive, of this article, a child custody
determination made under this section becomes a final
determination, if it so provides and this state becomes the home
state of the child.
(c) If there is a previous child custody determination
that is entitled to be enforced under this chapter, or a child
custody proceeding has been commenced in a court of a state
having jurisdiction under sections 20-201 through 20-203,
inclusive, of this article, any order issued by a court of this state
under this section must specify in the order a period that the
court considers adequate to allow the person seeking an order
to obtain an order from the state having jurisdiction under
sections 20-201 through 20-203, inclusive, of this article. The
order issued in this state remains in effect until an order is
obtained from the other state within the period specified or the
period expires.
(d) A court of this state which has been asked to make a
child custody determination under this section, upon being
informed that a child custody proceeding has been commenced
in, or a child custody determination has been made by, a court
of a state having jurisdiction under sections 20-201 through 20-
203, shall immediately communicate with the other court. A
court of this state which is exercising jurisdiction pursuant to
sections 20-201 through 20-203, upon being informed that a
child custody proceeding has been commenced in, or a child
custody determination has been made by, a court of another
state under a statute similar to this section shall immediately
communicate with the court of that state to resolve the
8
that the circuit court lacked jurisdiction to proceed beyond the temporary, emergency stage.

Because the UCCJEA issue is dispositive of the instant appeal, we focus our discussion

there.

The UCCJEA is a model law adopted in West Virginia that governs subject

matter jurisdictional issues for all child custody proceedings, including abuse and neglect

proceedings. See e.g., W. Va. Code § 48-20-102(d) (2001) (defining “child custody

proceeding” under UCCJEA to include “a proceeding for . . . neglect, abuse”); In re J.C.,

242 W. Va. 165, 170, 832 S.E.2d 91, 96 (2019) (“We note at the outset that, for purposes

of the UCCJEA, an abuse and neglect proceeding comes under the definition of a ‘child

custody proceeding.’”) (footnote and citation omitted).

There is no indication in the appellate appendix record that the petitioner

challenged the circuit court’s jurisdiction while this case was pending in circuit court.

Rather, it appears that this issue is being raised for the first time on appeal. We are deeply

troubled by the petitioner’s delay in asserting the jurisdictional challenge, and by the failure

of the circuit court, the DHHR, 9 and the GAL to recognize and timely address the obvious

emergency, protect the safety of the parties and the child, and
determine a period for the duration of the temporary order.

Although represented by the Attorney General on appeal, the DHHR was
9

represented by the Office of the Mercer County Prosecuting Attorney at the circuit court
level.
9
jurisdictional concern in this case. 10 The price of this delay will unfortunately fall squarely

upon Z.H., a child who must now wait longer for the permanency he deserves.

Nonetheless, even if the UCCJEA issue was not raised or addressed below,

“[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 v.

Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008); accord Ellithorp v. Ellithorp, 212 W. Va.

484, 490, 575 S.E.2d 94, 100 (2002) (“[j]urisdiction of the person may be conferred by

consent, . . . [but] jurisdiction of the subject-matter of litigation must exist as a matter of

law”) (citations and internal quotation marks omitted)). “Subject matter jurisdiction under

the” UCCJEA “cannot be conferred by consent, waiver, or estoppel.” Rosen, 222 W. Va.

at 404, 664 S.E.2d at 745, syl. pt. 5. Furthermore, a “‘[l]ack of jurisdiction may be raised

for the first time in this court, when it appears on the face of the bill and proceedings, and

it may be taken notice of by this court on its own motion.’ Syllabus Point 3, Charleston

Apartments Corp. v. Appalachian Elec. Power Co., 118 W. Va. 694, 192 S.E. 294 (1937).”

Syl. Pt. 3, Lewis v. Munic. of Masontown, 241 W. Va. 166, 820 S.E.2d 612 (2018).

10
For example, the fact that the petitioner was traveling from another state to attend
the hearings in this case should have raised a red flag to the court and to counsel that they
should consider any UCCJEA implications. Another obvious clue was the testimony of
both the CPS worker and the petitioner stating that the petitioner had no contact with West
Virginia other than going to the hospital to give birth.
10
 Although we will address the application of the UCCJEA in this appeal, we

emphasize that the issue should have been taken up at the beginning of the circuit court

proceeding. “The urgency of addressing problems regarding subject-matter jurisdiction

cannot be understated because any decree made by a court lacking jurisdiction is void.”

State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619 S.E.2d 209,

213 (2005) (citation omitted). Because of the vital importance of this issue to children, we

hold that all courts must be watchful for jurisdictional issues arising under the Uniform

Child Custody Jurisdiction and Enforcement Act, West Virginia Code §§ 48-20-101 to -

404 (2001). Even if not raised by a party, if there is any question regarding a lack of subject

matter jurisdiction under the UCCJEA then the court should sua sponte address the issue

as early in the proceeding as possible. See, e.g., Syl. Pt. 2, In re Boggs’ Estate, 135 W. Va.

288, 63 S.E.2d 497 (1951) (recognizing that court may take notice of lack of subject matter

jurisdiction at any time in litigation).

Turning to the substance of the petitioner’s argument, the different bases for

a court to have subject matter jurisdiction under the UCCJEA are set forth in W. Va. Code

§ 48-20-201(a) (2001). 11 Those bases have been summarized as follows:

11
West Virginia Code § 48-20-201 provides:

(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:
(1) This state is the home state of the child on the date
of the commencement of the proceeding, or was the home state
11
 “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. [733] at 740, 735
S.E.2d [882] at 889 [2012] (internal citation omitted).

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.
(b) Subsection (a) of this section is the exclusive
jurisdictional basis for making a child custody determination
by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a
party or a child is not necessary or sufficient to make a child
custody determination.
12
J.C., 242 W.Va. at 171, 832 S.E.2d at 97. We will examine each of these statutory bases,

in the order they are listed in the statute.

A. Home state jurisdiction:

West Virginia Code § 48-20-201(a)(1) confers home state jurisdiction upon

a West Virginia court if West Virginia “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[.]” Syllabus point 3 of

Rosen quotes the statutory definition of “home state” verbatim:

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.

Rosen, 222 W. Va. at 404, 664 S.E.2d at 745, syl. pt. 3 (quoting W. Va. Code § 48-20-

102(g)) (emphasis added). The term “commencement” means “the filing of the first

pleading in a proceeding.” W. Va. Code § 48-20-102(e).

The first pleading in this proceeding was filed just one day after Z.H. was

born, when the DHHR reported to the circuit court that it had assumed custody of Z.H. on

an emergent basis and the circuit court entered an order that same day ratifying the

13
emergency removal. The petition for abuse and/or neglect was filed the very next day—

weeks before the infant was discharged from the hospital. The petitioner argues that Z.H.

did not live in the hospital, and the parents are residents of Virginia, have never lived in

West Virginia, had no intent to remain in West Virginia, and had no connection with West

Virginia other than going to the hospital. The petitioner argues that Z.H. did not live with

any person except in the petitioner’s womb, which occurred in Virginia, thus the baby’s

home state is Virginia. Moreover, the petitioner argues that most of the alleged abuse and

neglect occurred in Virginia, where the child was exposed to drugs in utero. Thus, she

argues that Virginia, not West Virginia, is the home state. While we agree that West

Virginia is not Z.H.’s home state for purposes of the UCCJEA, the petitioner’s analysis of

home state jurisdiction is not entirely correct.

Because Z.H. was a newborn when this case commenced, we look to the

following sentence in the statute: “In the case of a child less than six months of age, the

term [home state] means the state in which the child lived from birth with any of the persons

mentioned[,]” i.e., with “a parent or person acting as a parent.” W. Va. Code § 48-20-

102(g). Although the petitioner focuses much of her argument on the time frame before

birth, the correct analysis for purposes of home state jurisdiction examines the time “from

birth.” See id. We discussed this concept in J.C.:

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.

14
 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., 152 A.D.3d 998, 59
N.Y.S.3d 193, 194 (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 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., 242 W. Va. at 171-72, 832 S.E.2d at 97-98. Accordingly, we do not look at the

circumstances before Z.H.’s birth to determine home state jurisdiction. 12

The DHHR also misconstrues home state jurisdiction. The DHHR notes that

since being released from the hospital, Z.H. has continuously resided with foster parents in

West Virginia. The DHHR argues that the foster parents are the “person[s] acting as a

parent” for purposes of establishing home state jurisdiction. See W. Va. Code § 48-20-

102(g). This argument ignores the fact that Z.H. was only placed with the foster parents

after, and as the result of, the commencement of the abuse and neglect proceeding. As set

12
As discussed below, West Virginia Code § 48-20-201(a) does not limit the
establishment of other bases for jurisdiction to an examination of the time frame “lived
from birth.” This language is in the statutory provision defining “home state” with respect
to children less than six months of age. See W. Va. Code § 48-20-102(g).
15
forth above, “commencement” means “the filing of the first pleading in a proceeding.” W.

Va. Code § 48-20-102(e). This proceeding commenced one day after Z.H.’s birth, before

the child was placed with the foster parents.

Multiple plain and unambiguous provisions of the UCCJEA, as well as our

own case law, make clear that the time frame after the commencement of the child custody

proceeding is not relevant to the determination of home state jurisdiction. This includes

West Virginia Code § 48-20-201(a)(1), which provides that “[t]his 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[.]” (emphasis

added). Similarly, West Virginia Code § 48-20-102(g) refers to the child living with a

parent or a person acting as a parent “immediately before the commencement of a child

custody proceeding.” (emphasis added). Indeed, the very definition of “person acting as a

parent” requires, inter alia, that a person have physical custody of a child “immediately

before the commencement of a child custody proceeding[.]” W. Va. Code § 48-20-102(m),

in part (emphasis added). The DHHR’s argument also ignores one of our syllabus points

in K.R.:

To determine whether a state qualifies as a child’s
“home state” for purposes of determining initial jurisdiction
under W. Va. Code § 48-20-201(a) (Repl. Vol. 2009), a court
must analyze whether any state qualified as the child’s “home
state” at any time within the six months immediately preceding
commencement of the action.

229 W. Va. at 734, 735 S.E.2d at 883, syl. pt. 3. (emphasis added). As explained in K.R.,

16
 [t]he Court is cognizant of the substantial amount of
time that has lapsed during the pendency of this appeal.
However, W. Va. Code §§ 48-20-102(g) and 201(a)(1) does
[sic] not permit consideration of where the children lived
subsequent to commencement of the proceeding. Therefore,
the location of the children at all times subsequent to the
commencement of this particular action is obviously irrelevant
for purposes of determining whether the circuit court had
jurisdiction in the first instance to make the permanent
guardianship determination at issue.

229 W. Va. at 744 n.22, 735 S.E.2d at 893 n.22.

Although these UCCJEA concepts have previously been discussed by this

Court, the arguments made in the case sub judice suggest that there is still confusion with

regard to home state jurisdiction for a newborn child. Accordingly, to clear up any

misunderstanding, we now hold that when determining whether a court has home state

subject matter jurisdiction over the custody of a child who is less than six months old, West

Virginia Code §§ 48-20-102(g) (2001) and 48-20-201(a)(1) (2001) direct the court to

consider where the child lived from the child’s birth to the commencement of the

proceeding in which custody is at issue. Events prior to birth, and the child’s living

arrangements after the commencement of the proceeding, are not relevant to the

determination of whether the court has home state subject matter jurisdiction.

Thus, in this case, the home state jurisdiction analysis is limited to an

examination of the time between Z.H.’s birth and the DHHR’s commencement of this

proceeding in court. The DHHR sought an order to ratify its assumption of emergency

17
custody just one day after Z.H.’s birth. During this one day, Z.H. was admitted to a hospital

in West Virginia. A hospital stay of this nature is obviously a temporary situation.

Moreover, a hospital is not a location where a child “lives with a parent or a person acting

as a parent.” It cannot be said that Z.H. “lived” in the Bluefield Regional Medical Center

during that one day.

Courts in other states have similarly recognized that the time spent in a

hospital incident to a child’s birth does not constitute “living with a parent or a person

acting as a parent” for purposes of conferring home state jurisdiction under the UCCJEA.

In In re D.S., 840 N.E.2d 1216 (Ill. 2005), a pregnant woman living in Illinois went into

labor and, in an effort to evade Illinois Child and Family Services, she started driving

toward Tennessee. Along the way, she stopped at a hospital in Indiana to give birth. Id. at

1218. While the newborn was still hospitalized, proceedings were initiated to take custody

from the mother. Id. The issue arose as to which state had jurisdiction. Ultimately, the

Supreme Court of Illinois concluded that “[b]y itself, a temporary hospital stay incident to

delivery is simply insufficient to confer ‘home state’ jurisdiction under the UCCJEA.” Id.

at 1222. The Illinois Court reasoned that “[w]hen people speak of where a mother and

newborn baby ‘live,’ they do not speak of the maternity ward. Instead, they speak of the

place to which the mother and baby return following discharge from the hospital.” Id.

Moreover, “allowing a temporary hospital stay to confer ‘home state’ jurisdiction would

undermine the public policy goals of the UCCJEA, which include ensuring that ‘a custody

18
decree is rendered in that state which can best decide the case in the interest of the child.’

(Emphasis added.) 9 U.L.A. § 101, Comment, at 657 (1999).” Id. at 1223.

The Supreme Court of Vermont has also addressed the issue of a newborn

child’s home state, explaining as follows:

[T]o determine M.S.’s home state, we look to where he was
physically present since birth. He was born in New Hampshire
and remained in the hospital at the time the petition was filed,
but these facts alone do not make New Hampshire M.S.’s home
state. Although, as explained above, “lived” as used in the
statute connotes physical presence, the statutory language
defines home state as more than just the place the child was
present. The statutory language is plain: the home state for a
child under six months is the place the child “lived from birth”
with a parent or person acting as a parent. 15 V.S.A. § 1061(7).
We conclude that by adding the requirement that the child live
with a parent or person acting as a parent, the Legislature meant
“lived” to mean more than simply being alive in the state.
“When people speak of where a mother and newborn baby
‘live,’ they do not speak of the maternity ward,” but of the
place where the child and parents occupied a home. In re D.S.,
217 Ill.2d 306, 298 Ill.Dec. 781, 840 N.E.2d 1216, 1222
(2005). We agree with courts from other jurisdictions that a
short hospital stay incident to birth does not amount to “liv[ing]
from birth with” a parent and does not in itself confer home
state jurisdiction. See, e.g., In re R.L., 4 Cal.App.5th 125, 208
Cal.Rptr.3d 523, 533–34 (2016) (holding that under UCCJEA
“a temporary hospital stay in a state incident to birth, by itself,
is insufficient to confer home state jurisdiction”); In re D.S.,
298 Ill. Dec. 781, 840 N.E.2d at 1222 (“By itself, a temporary
hospital stay incident to delivery is simply insufficient to
confer ‘home state’ jurisdiction under the UCCJEA.”); In re
Adoption of Baby Girl B., 19 Kan.App.2d 283, 867 P.2d 1074,
1079 (1994) (explaining that statutory home state “requirement
that the child ‘live with’ the mother from birth requires more
than the mother and newborn child staying at the same hospital
for a brief period”), superseded by statute, K.S.A. 59–2127, as
recognized in In re Adoption of H.C.H., 297 Kan. 819, 304 P.3d

19
 1271, 1280 (2013). Here, the petition was filed the day of
M.S.’s birth, and we conclude that the short period of time that
M.S. was in the hospital in New Hampshire following his birth
did not confer home state jurisdiction.

In re M.S., 176 A.3d 1124, 1131-32 (Vt. 2017); accord H.T. v. Cleburne Dept. of Human

Resources, 163 So.3d 1054, 1065 (Ala. Civ. App. 2014) (“We agree . . . that the drafters

of the UCCJEA intended ‘lived from birth’ to mean where a child, with a parent or a person

acting as a parent, has a presence—beyond simply a hospital stay attendant to giving birth

in a state—such as residing within or occupying a home together.”); State ex rel. In re R.P.

v. Rosen, 966 S.W.2d 292, 300 (Mo. Ct. App. 1998) (applying prior version of model law,

concluding that Kansas was not home state of newborn child “simply because R.P. and her

mother stayed in a hospital there for two days after R.P.’s birth”).

Consistent with the opinions of these other states, we now hold that a

newborn child’s hospital stay incident to birth is insufficient to confer home state subject

matter jurisdiction pursuant to West Virginia Code §§ 48-20-102(g) (2001) and 48-20-

201(a)(1) (2001). Applying the principles of law set forth herein, it is clear that West

Virginia does not have home state jurisdiction over Z.H.

We also conclude that neither Virginia nor any other state has home state

jurisdiction over Z.H. As a newborn infant who never left the West Virginia hospital before

this proceeding was commenced, Z.H. was never physically present in another state. “We

think it significant that the Legislature chose the word ‘lived’ as opposed to ‘resided’ or

20
‘was domiciled.’” K.R., 229 W. Va. at 742 n.20, 735 S.E.2d at 891 n.20 (quoting Powell v.

Stover, 165 S.W.3d 322, 326 (Tex. 2005)). Courts have recognized that “it is the child’s

presence—not a parent or child’s residence, domicile or subjective intent—that is relevant

to determining a child’s home state.” M.S., 176 A.3d at 1130; accord, Sajjad v. Cheema,

51 A.3d 146, 154 (N.J. Super. Ct. App. Div. 2012) (“determination of the child’s legal

residence or domicile is unnecessary as the statutory language ‘lived,’ included within the

definition of home state, connotes physical presence within the state, rather than subjective

intent to remain”); In re Tieri, 283 S.W.3d 889, 893 (Tex. App. 2008) (“In determining

where a child lived for the purposes of establishing home state jurisdiction, the trial court

must consider the child’s physical presence in a state and decline to determine where a

child lived based on the child’s or the parent’s intent.”). When a newborn is at issue, it is

very possible that there is no “home state” in which the child has “lived from birth.” In

both In re M.S., 176 A.3d at 1132, and In re D.S., 840 N.E.2d at 1223, the respective state

supreme courts concluded that the newborn children who were the subject of those cases

had no home state for UCCJEA purposes.

Next, we address an argument that the GAL makes about the UCCJEA in her

summary response. Instead of discussing the various bases for jurisdiction that are set forth

in West Virginia Code § 48-20-201(a), 13 the GAL relies on the temporary emergency

13
See supra n. 11 (quoting W. Va. Code § 48-20-201).
21
jurisdiction statute, West Virginia Code § 48-20-204. 14 In particular, § 48-20-204(b)

provides, in relevant part:

If a child custody proceeding has not been or is not commenced
in a court of a state having jurisdiction under sections 20-201
through 20-203, inclusive, of this article, a child custody
determination made under this section becomes a final
determination, if it so provides and this state becomes the home
state of the child.

The GAL argues that because a child custody proceeding pertaining to Z.H. was not

commenced in another state, then the circuit court’s emergency order awarding temporary

custody to the DHHR at the beginning of this proceeding became a final determination and

West Virginia became the child’s home state. However, there are multiple reasons why the

GAL’s argument lacks merit. First, subsection (b) of the temporary emergency jurisdiction

statute only permits a child custody determination to become a final determination if the

order “so provides[.]” See id. The circuit court’s emergency removal order in this case did

not provide that it was a final determination. Second, an emergency, pre-petition removal

order entered pursuant to West Virginia Code § 49-4-303 is merely an initial step; it is

never a final order. 15 The order merely “ratif[ies] the emergency custody of the child

pending the filing of a[n abuse and neglect] petition.” Id. If the DHHR removes a child

from a parent’s custody on an emergency, pre-petition basis, then the statute requires that

an abuse and neglect petition must be filed within two judicial days or the children must

14
See supra n. 8 (quoting W. Va. Code § 48-20-204).

See supra n. 2 (discussing W. Va. Code § 49-4-303, the pre-petition emergency
15

removal statute).
22
be returned to the parent’s custody. See id. “Under the facts of the instant case, the circuit

court’s temporary emergency jurisdiction ended when DHHR filed the abuse and neglect

petition.” J.C., 242 W. Va. at 174 n.28, 832 S.E.2d at 100 n.28 (citations omitted) (rejecting

an argument similar to that advanced by this GAL, and noting that “the power of a court

under [the temporary emergency jurisdiction statute] is limited”). Third, if another state

had jurisdiction over Z.H. pursuant to the UCCJEA, then the circuit court should have

inquired of a court in that other state to determine whether it was declining to exercise its

jurisdiction. See W. Va. Code §§ 48-20-201(a)(2) and (a)(3) (discussed infra). As no

inquiry was made of a court in another state, it is unclear how officials in the other state

would have known of the need to exercise jurisdiction in this matter. Accordingly, while

the circuit court was entirely within its authority and jurisdiction to protect Z.H. from

imminent harm by ratifying the emergency, pre-petition removal, West Virginia Code §

48-20-204 did not confer home state jurisdiction upon the circuit court to continue

presiding over the subsequent litigation.

This Court is left with the firm conclusion that Z.H. had no home state for

purposes of the UCCJEA. We therefore turn our attention to the next possible basis for

subject matter jurisdiction, “significant connection” jurisdiction.

23
B. “Significant connection” jurisdiction:

Pursuant to West Virginia Code § 48-20-201(a)(2), 16 “significant

connection” jurisdiction may exist in West Virginia if no court in another state has home

state jurisdiction under § 48-20-201(a)(1) or if a court in another state has home state

jurisdiction but declines it; the child and parent or parents have a significant connection to

West Virginia other than physical presence; and substantial evidence about the child’s care,

protection, training and relationships is available in West Virginia. Specifically, this

portion of the statute provides that

a court of this state has jurisdiction to make an initial
child custody determination only if: . . . (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[.]

Id. § 48-20-201(a)(2), in part (emphasis added). Because we have already concluded that

no state has home state jurisdiction over Z.H., we consider the requirements of subparts

(A) and (B) of this statute.

16
See supra n. 11 (quoting W. Va. Code § 48-20-201).
24
 With regard to subpart (B), from a review of the appendix record, it is clear

that substantial evidence is available in both Virginia and West Virginia concerning Z.H.’s

care and protection. The two allegations of abuse and neglect are prenatal drug abuse that

harmed the child, and medical neglect by the attempted removal from the hospital.

Evidence of the petitioner’s prenatal drug use would be found in Virginia, where she

resided and consumed the drugs. Another abuse and neglect case regarding the petitioner’s

drug abuse and parenting problems was heard in a Virginia court and was concluded just

before the instant proceeding began. The petitioner’s rights to another child were

involuntarily terminated in the Virginia case because of her drug use and failure to improve.

In addition, witnesses from the West Virginia hospital testified that Z.H. was born drug

exposed and that the petitioner attempted to remove the child from medical care.

However, the statute uses the word “and”—thus evidence establishing both

subpart (A) and subpart (B) is required for the circuit court to have significant connection

jurisdiction over this case. “‘And’ is a conjunctive, and the use of ‘and’ here clearly makes

both conditions necessary, not merely either of the two.” Ooten v. Faerber, 181 W. Va.

592, 597, 383 S.E.2d 774, 779 (1989) (citation omitted).

There is no evidence in the appendix record indicating that Z.H. and at least

one of his parents “have a significant connection with” West Virginia “other than mere

physical presence[,]” as required by subpart (A). Rather, the petitioner testified during the

adjudicatory hearing that she lives in Virginia, has never lived in West Virginia, and has

25
no connections with West Virginia other than going to the hospital. After giving birth, she

returned to her home in Virginia. She testified about taking a bus from her home in Virginia

to attend court hearings and MDT meetings for this case. In this appeal, she represents that

she never intended to stay in West Virginia. A CPS worker confirmed that the petitioner

lives in Virginia, and the CPS worker had no knowledge of any connection that petitioner

has with West Virginia other than going to the hospital to deliver Z.H. There is limited

evidence in the appendix record regarding Z.H.’s putative father L.H., but it is undisputed

that he also resides in Virginia. At most, Z.H. and one or both parents were merely

physically present in West Virginia for Z.H.’s birth. Therefore, we conclude that West

Virginia does not have significant connection jurisdiction.

It is equally clear that the State of Virginia does have significant connection

jurisdiction over this child custody matter. 17 As noted above, there would be substantial

evidence of the petitioner’s prenatal drug use available in Virginia. Moreover, the

petitioner has significant connections to Virginia. She resides in Virginia and when she

works, the work is performed from her Virginia home using the internet. Moreover, it was

a Virginia court that presided over her other, recent, abuse and neglect case.

Virginia has also adopted the UCCJEA, including the same statutory language as
17

West Virginia for initial child custody jurisdiction. See Va. Stat. Ann. § 20-146.12 (2001).
26
 Although Z.H. was only a newborn when this proceeding commenced, Z.H.

also has a significant connection to Virginia through his parents. Virginia is where his

parents reside and is where he was injured by the petitioner’s prenatal drug use. If this

abuse and neglect proceeding had not been initiated in West Virginia, Z.H.’s parents would

have taken him home to Virginia. Critically, for purposes of significant connection

jurisdiction, the statute does not limit courts to only examining evidence of events after the

child’s birth. The “lived from birth” language is found only in the statutory definition of

“home state” with respect to children less than six months of age; it is not included in the

statutory provision for significant connection jurisdiction. Compare W. Va. Code § 48-20-

201(a)(2) (specifying elements of significant connection jurisdiction) with W. Va. Code §

48-20-102(g) (defining “home state”). The drafters of the model UCCJEA recognized that

“[t]he jurisdictional determination [of significant connection jurisdiction] should be made

by determining whether there is sufficient evidence in the State for the court to make an

informed custody determination. That evidence might relate to the past as well as to the

present or future.” UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT, Cmt. 2

to § 201 (Nat’l Conf. of Comm’rs of Unif. State Laws 1997) (internal quotation marks

omitted).

In a leading case about the application of the UCCJEA to an abuse and

neglect case involving a newborn baby, the Supreme Court of Illinois concluded that

significant connection jurisdiction existed in the state where the mother and other relatives

lived and where the mother received pre-natal and mental health care:

27
 That takes us to section 201(a)(2), which clearly
provides a basis for the trial court’s exercise of jurisdiction in
this case. Under this section, Illinois has jurisdiction if (1) no
other state has “home state” jurisdiction; (2) D.S. and at least
one of his parents has a significant connection with Illinois,
other than mere physical presence; and (3) substantial evidence
is available in Illinois concerning D.S.’s care, protection,
training, and personal relationships. 750 ILCS 36/201(a) (West
2004). On the first point, we have already established that no
other state has “home state” jurisdiction under section
201(a)(1). On the second point, the record shows that D.S.’s
father and six of his half-siblings are Illinois residents, and that
respondent was a longtime Illinois resident at least until the
morning of D.S.’s birth. On the third point, there is no question
that substantial evidence is available in Illinois concerning
D.S.’s care, protection, training, and personal relationships.
Again, both of D.S.’s parents and six of his eight half-siblings
are longtime residents of Illinois. D.S.’s half-siblings are the
subject of termination proceedings pending in the very same
judicial circuit [in Illinois] that entered the decision below, and
those proceedings have generated a substantial record relating
to respondent’s parental fitness and mental health.
Respondent’s mental health records are located in Illinois, and
Illinois is where respondent received her prenatal care while
pregnant with D.S. Indeed, the record strongly suggests that,
with the possible exception of the records relating to D.S.’s
actual delivery in Crawfordsville [Indiana], all of the evidence
concerning D.S.’s care, protection, training, and personal
relationships will be found in Illinois. Accordingly, we hold
that the trial court possessed jurisdiction under section
201(a)(2).

In re D.S., 840 N.E.2d at 1223-24. The Vermont Supreme Court took the same approach

in its newborn case, In re M.S., 176 A.3d 1124. After concluding that the newborn had no

home state for UCCJEA purposes, the court found that Vermont had significant connection

jurisdiction because of the parents’ long history in Vermont; the mother had lived in

Vermont at various times, including during her pregnancy; and the parents’ other children

were in the custody of the Vermont Department of Children and Families. Id. at 1134.

28
Using the same approach, it is clear that a Virginia court would have significant connection

jurisdiction over Z.H.’s abuse and neglect case.

We turn our attention to the next potential basis for West Virginia to have

jurisdiction under the UCCJEA: declination jurisdiction.

C. “Declination” jurisdiction:

Pursuant to West Virginia Code § 48-20-201(a)(3), 18 West Virginia would

have jurisdiction if “[a]ll 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 20-207 or 20-208”

of the Act. The subdivisions (1) and (2) referenced in this language are the home state and

significant jurisdiction provisions of § 48-20-201. West Virginia Code § 48-20-207 permits

a court to decline jurisdiction if it would be an inconvenient forum in which to hold the

custody proceeding. West Virginia Code § 48-20-208 addresses when jurisdiction may be

declined by reason of the unjustifiable conduct of party.

Critically, pursuant to the plain and unambiguous language of West Virginia

Code § 48-20-201(a)(3), only a “court” may decline to exercise jurisdiction. “Where the

language of a statute is free from ambiguity, its plain meaning is to be accepted and applied

18
See supra n. 11 (quoting W. Va. Code § 48-20-201).
29
without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172

S.E.2d 384 (1970). Thus, the declination cannot come from a child protective services

worker, attorney for the state, or any other person or official. We recently addressed this

issue in In re J.C., where we rejected an argument that a child protective services worker

in a child’s home state could decline jurisdiction. See J.C., 242 W. Va. at 173, 832 S.E.2d

at 99. We held that

[o]ne 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.

Id. at syl. pt. 4. Although this syllabus points refers to another state having “home state”

jurisdiction, that is only because In re J.C. happened to involve facts where another state

was the home state. Pursuant to the statutory language, this same principle of law applies

when another state has either home state jurisdiction or significant connection jurisdiction.

See W. Va. Code § 48-20-201(a)(3) (“All courts having jurisdiction under subdivision (1)

or (2) of this subdivision have declined to exercise jurisdiction . . . ”). Accordingly, we now

hold that one of the requirements under West Virginia Code § 48-20-201(a)(3) (2001) for

a court to obtain subject matter jurisdiction over an initial child custody determination

where another state has either home state jurisdiction or significant connection jurisdiction,

is that a court of the other state must decline to exercise jurisdiction. This requirement is

not satisfied by evidence that some other person or entity in the other state has declined

jurisdiction.

30
 We have already concluded that Virginia has significant connection

jurisdiction over this matter. 19 Because there is no evidence that a court in Virginia has

declined to exercise that jurisdiction, or was even contacted to inquire about a declination,

West Virginia does not have declination jurisdiction. We turn to the next potential basis

for obtaining jurisdiction, default jurisdiction.

D. “Default” jurisdiction:

“Default jurisdiction” under West Virginia Code § 48-20-201(a)(4) applies

if “[n]o court of any other state would have jurisdiction under the criteria specified in

subdivisions (1), (2), or (3)” of § 48-20-201(a). 20 However, as set forth above, we have

already concluded that the State of Virginia possesses significant connection jurisdiction

over this matter pursuant to § 48-20-201(a)(2). 21 Therefore, West Virginia does not have

default jurisdiction under the UCCJEA.

IV. Conclusion

Based upon the foregoing discussion, we conclude that the circuit court did

not have subject matter jurisdiction in this proceeding. “A decree entered in a pending suit

19
See supra section III.B. of this opinion.
20
See supra n. 11 (quoting W. Va. Code § 48-20-201).
21
See supra section III.B. of this opinion.
31
in which the court lacks jurisdiction of the subject-matter is to that extent 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); see also, J.C., 242 W. Va. at 175, 832 S.E.2 at 101 (declaring abuse and neglect

dispositional order void for circuit court’s lack of subject matter jurisdiction under

UCCJEA); Universal Underwriters, 239 W. Va. at 347, 801 S.E.2d at 225 (concluding that

order deciding motion to dismiss was “void and unenforceable” because circuit court

lacked subject matter jurisdiction); TermNet Merch. Servs., 217 W. Va. at 700, 619 S.E.2d

at 213 (recognizing that “any decree made by a court lacking jurisdiction is void”); 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.”). Accordingly, the circuit court’s March 5, 2020, order terminating the

petitioner’s rights to Z.H. is void and unenforceable. 22

We vacate and remand this case to the circuit court with directions for the

circuit court to immediately contact a court in the State of Virginia to inquire whether the

Virginia court will decline its jurisdiction in this matter. Our decision does not mean that

Z.H. should be returned to his parents in the interim. The record evidence is more than

sufficient for this Court to conclude that it is in the child’s best interests to remain safely

with the foster parents while the jurisdictional issue is resolved. If the Virginia court

22
This ruling necessarily extends to Z.H.’s father.
32
chooses to exercise jurisdiction, then Z.H. should be transferred to the custody of Virginia

child welfare authorities. If the Virginia court declines jurisdiction, then West Virginia will

have declination jurisdiction under the UCCJEA, West Virginia Code § 48-20-201(a)(3),

and the circuit court must hold a de novo adjudicatory and dispositional hearing. See J.C.,

242 W. Va. at 176, 832 S.E.2d at 102.

The circuit court’s March 5, 2020, dispositional order is vacated, and this

case is remanded to the circuit court for further proceedings consistent with this opinion. 23

Vacated and Remanded with Directions

23
Because the circuit court’s lack of subject matter jurisdiction is dispositive of this
appeal, we do not address the petitioner’s first assignment of error where she argues that
the circuit court should have imposed a disposition other than the full termination of her
rights.
33