In this unusual case, the court of appeals agrees with a parent in a TPR proceeding that the circuit court may not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because of an order issued in another state governs custody of the children.
J.P. filed petitions to terminate the parental rights of his ex-spouse, A.P., based on continuing denial of periods of physical placement and failure to assume parental responsibility. While J.P. lives in Wisconsin, the couple had been divorced in Minnesota, and custody and placement of their four children was governed by orders issued by a Minnesota court. Thus, an order terminating A.P.’s parental rights would effectively modify the Minnesota order. (¶¶2-4, 9).
A.P. moved to dismiss the TPR on the grounds the Wisconsin court had no jurisdiction to modify the Minnesota custody order because, under § 822.23, a court of this state may not modify a child custody determination made by the court of another state unless one of two exceptions applies. The only exception at issue here is the one § 822.23(2), which allows a Wisconsin court to act if it determines that the children, the parents, and all persons acting as parents “do not presently reside” in the other state. The circuit court erred in finding that exception applied here:
¶14 The circuit court appeared to reason that Wis. Stat. § 822.23(2) was satisfied and that the court had jurisdiction to proceed with the TPR actions because, if Wisconsin did not have jurisdiction, the children would be in “limbo,” that it was “clear that [A.P.] at the time was not acting as a parent,” and that “[t]he child[ren]’s parents, parent who was the—had sole custody, and only one [who] could have actual contact with the child[ren] at the time was [J.P.] here in Wisconsin.” This may be a common-sense view of the situation, but I am unable to reconcile it with the requirement found in sub. (2). In particular, the court’s apparent reasoning that sub. (2) is satisfied if all persons acting as parents live in Wisconsin does not find support in the statutory language.
¶15 J.P. attempts to support the circuit court’s decision on the basis that, at the time the petitions were filed, A.P.’s residence was unknown. However, under Wis. Stat. § 822.23(2), there needed to be a finding that A.P. did “not presently reside” in Minnesota. A lack of knowledge of A.P.’s residence does not satisfy that requirement.
¶16 For the same reason that I reject J.P.’s argument, I conclude that the record before the circuit court at the time of its ruling did not satisfy Wis. Stat. § 822.23(2). Under sub. (2), there needed to be evidence supporting a finding that A.P. did “not presently reside” in Minnesota. So far as I can tell, all that the record revealed at the time of the remand was that A.P. told the circuit court that she was in Minnesota at a women’s shelter at the time the TPR petitions were filed.
Despite the circuit court’s erroneous jurisdictional ruling, the court of appeals doesn’t dismiss the case, as A.P. requests; instead, it remands for the circuit court to determine whether there’s a basis for jurisdiction under § or 822.23 or dismissal under § 822.26(2). (¶¶18-21).