Thursday, August 27, 2009

custody - jurisdiction - home state - finding

Bouzos-Reilly v. Reilly - Superior Court - August 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a20005_09.pdf

Because the trial judge failed to conduct a full hearing with relevant witnesses to elicit testimony regarding the underlying jurisdictional issue, there was insufficient evidence on the record to support the trial court’s findings. Thus, we reverse.

We recognize that the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §5401, et seq., is designed to eliminate a rush to the courthouse to determine jurisdiction. However, the UCCJEA is dependent on a proper finding that there is a home state. The judge in New York and the judge in Pennsylvania communicated by telephone, which is certainly proper. However, the determination of a home state should not be based on which judge speaks first to claim home state status. In this case, the New York court erred, and merely because that judge spoke first does not mean the Pennsylvania judge should automatically acquiesce to that determination.

A court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that discretion. Under Pennsylvania state law, an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Billhime v. Billhime, 952 A.2d 1174, 1176 (Pa. Super. 2008) (citation omitted).

child abuse - expungement - timely admin. decision - judicial delay

J.C. v. DPW - Cmwlth. Court - August 27, 2009

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/2309CD08_8-27-09.pdf

The court affirmed the finding of abuse and rejected the argument that the "initial report of child abuse should be deemed “unfounded” by operation of law because a final determination was not made within the 60-day time limit of Section 6337(b) of the Child Protective Services Law (Law), 23 Pa. C.S. §6337(b). In this case, the determination was made more than 60 days after the appellant's plea but within 60 days of her sentencing.

The law -- 23 Pa. C.S. §6337(b), 23 Pa. C.S. §6303, and 55 Pa. Code §3490.69 -- "contemplates a suspension of the investigation/final determination period where, as here, “court action has been initiated and is responsible for the delay.” 23 Pa. C.S. §6337(b). More importantly, the regulations contemplate a suspension of the 60-day period where, as here, there is criminal court action pending and the agency reports that status to ChildLine. 55 Pa. Code §3490.67."

The court also rejected the argument that entry of a no contest plea is a judicial adjudication. Rather, the court found that "[f]or purposes of determining a report to be “founded” based on action in a pending criminal proceeding, we believe a judicial adjudication occurs at sentencing, and not earlier....[A] judicial adjudication in a criminal case occurs when an appealable judgment of sentence is imposed.

Under this interpretation, a suspension of the 60-day investigation/final determination period does not end with the entry of a plea in a criminal case; rather, the suspension may continue until a final, appealable judgment of sentence is imposed."

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