The record in this case amply supports the conclusion that the trial court abused its discretion, given the substantial ties that the parties and the child have to the State of Arkansas, coupled with circumstances which reveal that a manifest injustice has occurred. Therefore, I respectfully dissent to an affirmance of the chancellor’s decision deferring jurisdiction to the California Court.
On December 31, 1992, a female child was born prematurely at a hospital in Garland County. On January 8, 1993, the Department of Human Services applied for and obtained an ex parte order for emergency custody, thereby invoking the jurisdiction of this juvenile court and placing the child under the protective aegis of that court. As required by Ark. Code Ann. § 9-27-315(a) (Repl. 1991), a hearing was scheduled for January 11th. It is undisputed that appellant, the mother of the child, was not notified of this hearing. At the conclusion of this hearing, without any investigation whatsoever, the chancellor, with the advice and consent of appellee, allowed the child to be removed from this State to the State of California by giving custody to the father, with placement in his mother. Oddly, no order was entered reflecting this action until March 16, 1993. The court’s docket from January 11 does contain an entry stating, “custody to father; placement with mother.” Notably, the entry also states that the court would “retain jurisdiction unless or until another ct.”
On January 14, 1993, the attorney ad litem which had been appointed for the child filed an emergency petition requesting that the child be placed back into appellee’s custody. In this petition and accompanying affidavit, the attorney alerted the court of his concerns about placement of the child with the father. The ad litem related that he had been told by appellant that the father had been neglectful of their other children and that he was engaged in a continuing course of criminal conduct. He also advised the court that appellant had told him of an incident where she had been threatened by the father with a shotgun. The ad litem also reported that the case worker for appellee had been advised by appellant that the father was under investigation by the Federal Bureau of Investigation, but that the case worker had not taken this information seriously and had refused to contact the FBI regarding the matter. He said that he had done so, and had learned that the father was indeed under investigation for wire fraud and that an indictment was forthcoming. On January 26, the court granted the attorney ad litem’s petition and ordered that the child be returned to appellee’s custody. A hearing was set for February 1.
Appellant did receive notice of this hearing and appeared on that date prepared to defend the action. Not surprisingly, and with amazing foresight, neither the father, nor his mother who had filed a motion to intervene and petition for custody of the child, were present for the hearing; thus, despite the court’s order commanding the return of the child, the child remained in California. Most remarkably, however, there was no hearing at all held on that date, because at the outset, the chancellor announced, over appellant’s strenuous objection, that he was dismissing the case in favor of a court in California.
Thereafter, appellant filed a motion for rehearing, and ultimately appellant was granted the opportunity to present evidence, but only on the jurisdictional question. At this hearing, appellant testified that she and her husband had gotten married in Little Rock in February of 1991, and had lived in Arkansas until March of 1992. The record indicates that one of the parties’ children had died and was buried in Arkansas. Appellant said that they went to visit husband’s parents in California “as a place we were going to go to get away from Arkansas.” She said that they stayed there from that March until the following December, when they returned to Arkansas. Appellant stated, however, that while they were in California, they made trips to Arkansas two to three times a month because her husband’s telemarketing business was located in Little Rock. She said that it had been her intent to remain in Arkansas where she had family.
Appellant further testified that she left her husband, after years of abuse, on December 29, when he had threatened her with a shotgun. She indicated that the man with whom she had left was called by her husband to come get her. She said that they went to Magic Springs to get her mind off of things, but that she had gone into labor prematurely and had given birth to the child on December 31. She stated that the child had to remain in the hospital because she had been born a month early, and was very small. Appellant said that she was instructed to learn how to operate a monitor and to take a course in CPR, since one of their children had died of SIDS. She testified that she took the CPR course and she produced evidence that she had rented a monitor for the child.
Despite appellee’s claim of abandonment, the record reveals some foreknowledge on the part of appellant of appellee’s intent to obtain custody. When the child was taken, appellant had retained the services of a lawyer, and the case worker testified at the first hearing that the ex parte order was sought on the day that appellant had planned to take the child home from the hospital. In addition, the case worker testified that appellant had told her that she was going to go to the hospital to see her child one- more time.
Also, at the hearing, the chancellor was informed by the father’s attorney that the father was in California for the purpose of retaining residency for the divorce action, and the attorney added that the “only reason he’s in California is to cooperate with the Federal authorities.”
The record in this case supports the view that the parties’ ties to this state were greater than those established in California. The parties were married in Arkansas and had lived here throughout their marriage; this was the place where the husband’s business was located; and, they had buried a child here. One can easily infer that their presence in California had something to do with the FBI’s investigation of the husband’s business practices. And, while taking refuge in California, frequent trips were made to this state. Contrary to the majority’s view, the evidence does not demonstrate that their presence in Arkansas was simply for a “two-week visit.”
From a review of the record, including the chancellor’s remarks which were made throughout the proceedings, it appears that the proper focus of this case, being the best interest of the child, was overlooked, and became secondary to the court’s concern about some other court handling the matter. It appears that the chancellor felt that the case was in his court only by accident of birth. But, accident or not, the child was born in a Garland County hospital, and the court’s jurisdiction was invoked by appellee when it filed the petition for emergency custody. Thus, accident or not, it fell to the court to take some action to protect and promote the best interests of the child. Instead, the chancellor abdicated this responsibility by allowing the child to be removed from this state without benefit of any investigation. And, although it was deemed necessary for that order to be rescinded, the order calling for the return of the child was never enforced, and the court summarily dismissed the case.
In sum, I can only conclude that the chancellor erred by declining to exercise jurisdiction over this case. The record reflects definite and sufficient contacts with this state, where the child was born, whereas the parties’ stay in California was of short duration and of an impermanent nature. In essence, the court created jurisdiction in the California court over a custody matter wheiii the court allowed the child to be taken there. But for the child’s presence in California, a court of that state would have had little or no basis for the exercise of jurisdiction over a custody matter. Also, permitting the removal of the child from the state effectively left the court without any means of enforcing any orders which it might have chosen to make if it had retained jurisdiction. In the meantime, appellant has lost her child on an allegation of dependency-neglect, which was never proven. I find an abuse of discretion and would not let this decision stand.
Cooper, J., joins in this dissent.