Leinen v. Arkansas Department of Human Services

George K. Cracraft, Special Judge. Kimberly Leinen appeals from an order of the juvenile division of Garland County Chancery Court (juvenile court) declining to exercise its jurisdiction in a custody proceeding and transferring the case to the courts of California as a more appropriate forum. We find no error and affirm. On December 31, 1992, appellant gave birth to a baby girl in Garland County, Arkansas. On January 8, 1993, the Arkansas Department of Human Services (DHS) filed in juvenile court a petition for emergency custody of the child alleging that she was dependent and neglected and her welfare would be threatened if the order was not entered. The court entered an ex parte order granting the petition on that same date. A hearing on the matter was set for January 11, 1993. According to a social worker, appellant left the baby at the hospital and her whereabouts since she left were not known. Notice of the January 11 hearing had not been served on appellant and she did not appear. The court then entered an order placing temporary custody in the father with permission for the child to actually reside with the paternal grandmother in California. Thereafter, on reports from the guardian ad litemj the court rescinded its most recent order, directed that the child’s custody be returned to DHS, and set a hearing for February 1, 1993. In the interim, the father filed suit for divorce in California seeking custody of the child, and appellant filed suit for similar relief in the chancery court of Saline County, Arkansas. Appellant’s suit was dismissed on January 14 on a finding that she was not a resident of that county. The California court retained jurisdiction of the father’s action, and pursuant to Ark. Code Ann. § 9-13-207(d) (Repl. 1993) the two courts communicated. After the hearing of February 1, 1993, of which appellant was notified and at which she appeared, the Arkansas juvenile court, on its own motion, noted by docket entry that it would defer jurisdiction to the court in California. Appellant filed a motion for a rehearing on the question of whether the Arkansas court should continue to exercise jurisdiction. The motion was granted and an evidentiary hearing was held. After the rehearing, the juvenile court again decided that it should decline to exercise jurisdiction in the matter and instead should relinquish jurisdiction to the California court, and a written order to this effect was entered. Appellant brings this appeal contending that the juvenile court erred in declining to exercise jurisdiction in the case. Appellant first contends that the court erred in relying on the provisions of Ark. Code Ann. § 9-13-206 (Repl. 1993). That section provides that a court of this State “shall not exercise jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter. . . .” We agree that this section has no application because, at the time the petition was filed in the juvenile court of Garland County, the divorce action in California had not been commenced. We cannot agree, however, that the juvenile court erred in its application of Ark. Code Ann. § 9-13-207, which provides in pertinent part as follows: (a) A court which has jurisdiction under this sub-chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum. (b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child. (c)In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, (1) If another state is or recently was the child’s home state; (2) If another state has a close connection with the child and his family or with the child and one (1) or more of the contestants; (3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state; (4) If the parties have agreed on another forum which is no less appropriate; and (5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in § 9-13-201. Appellant argues that the evidence pertaining to these factors mandates a conclusion that Arkansas rather than California was the more convenient forum. We do not agree. The information on which the juvenile court acted would establish that the parents were residents of the State of California and had come to White County, Arkansas, on a two-week visit. The mother left her husband and another child of the marriage in Searcy and went to Garland County with another man. Appellant went into premature labor and the child was born a few hours after her arrival in Garland County. She informed the doctor that she had received no prenatal care and had used marijuana during her pregnancy. He contacted DHS, which found that appellant “gave conflicting information” as to her address. Appellant’s husband had filed a missing person report on her in White County before leaving for California with their other child. The mother left the hospital without the child and the social worker could not locate her. The social worker stated that, if she had not taken appellant’s daughter, the child would have been abandoned. When the father was notified, he immediately returned to Arkansas for the January 11 hearing and, thereafter, took the infant to California. The paternal grandmother is a pediatric nurse in California and alleged that she had custody of appellant’s other daughter. The father’s family resides in the State of California, where he contended the parties had theretofore resided. While much of this was hearsay evidence, it was not objected to by appellant either at the hearing held pursuant to her motion or in her argument on appeal. Appellant’s position that the evidence clearly preponderated in favor of a finding of greater contacts with Arkansas is based upon the assumption that only her testimony was to be believed. However, the court was not required to believe any witness. Gatlin v. Gatlin, 306 Ark. 136, 811 S.W.2d 761 (1991); Bell v. Bell, 15 Ark. App. 196, 691 S.W.2d 184 (1985). We cannot conclude that the record does not support the juvenile court’s findings that California is the place of the parties’ residence and the location of greater available evidence regarding the child’s protection and personal relationships, or that the court abused its discretion in declining to exercise jurisdiction. Appellant next contends that the juvenile court refused to consider the financial burden that its order would place on her in presenting her case to the California court. While relative financial burdens is not a factor listed in the statute, the record discloses that the court did consider whether appellant would be able to return to California for a hearing. The court determined, however, that as most of the evidence relative to the prospective care of the child would require the presence of persons from California, the burdens of presenting the case in Arkansas would outweigh any burden placed on appellant by its order of transfer. It was argued in our conference of this case that the Arkansas Juvenile Code required the court to follow a definite procedure subsequent to the entry of the emergency order, that the court did not follow that procedure, and that it thereby erred in its action. This issue was not raised in the juvenile court, nor was it briefed and argued on appeal. It is our settled rule that issues not raised in the trial court will not be considered on appeal. Clark v. Tabor, 38 Ark. App. 873, 830 S.W.2d 131 (1994). Nor will issues not argued and briefed on appeal be raised sua sponte in this court unless we determine that the trial court wholly lacked subject matter jurisdiction. See In re Adoption ofD.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); cf. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994); Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991). The Garland County Juvenile Court did have subject matter jurisdiction of this case. Jurisdiction of the subject matter is that power conferred on a court to adjudge certain matters and to act on the facts alleged. Such jurisdiction does not depend on a correct exercise of that power. If the court errs in its decisions or proceeds irregularly within its assigned jurisdiction, the remedy is by direct action in the erring court or by appeal. Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987); see Birchen v. State, 303 Ark. 220, 975 S.W.2d 53 (1990). The juvenile courts of this State have original subject matter jurisdiction of, among other things, matters in which it is alleged that a child is dependent-neglected. Ark. Code Ann. § 9-27-306(a)(l) (Repl. 1993). In this case, this allegation was made in the petition and supporting documents and evidence. If, in fact, the trial court did err in the procedural application of its statutory power to adjudicate the issue, the remedy was direct action seeking to correct that error in the trial court or an appeal raising that issue to the appellate court. Appellant did neither. Affirmed. Bruce Bullion, Sp. J., joins in this opinion. Rogers and Cooper, JJ., dissent. Mayfield and Robbins, JJ., not participating.