Dept. of Human Services v. M.R.

“To determine whether a child’s absence from a state was temporary, Oregon courts use a ‘totality of the circumstances’ test, which ‘looks at all the surrounding circumstances of a purported temporary absence, including the intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state.’” Schwartz and Battini, 289 Or App 332, 342-43 (2017).

Mother appealed a juvenile court judgement that asserted dependency jurisdiction over her child. Mother assigned error to the juvenile’s court’s determination that it had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). On appeal, Mother first argued that the juvenile court erred when it determined that it had jurisdiction because the record lacks any evidence that the child would be at immediate risk of harm. Second, Mother argued that Virginia, not Oregon, had UCCJEA jurisdiction because the child had lived in Virginia with her grandparents, who cared for and acted as if they were the child’s parents. In response, DHS argued that Virginia was not the child’s home state, and Oregon has UCCJEA jurisdiction under ORS 109.741(1)(d) because no other state had jurisdiction. DHS conceded that the record did not support temporary emergency jurisdiction. “To determine whether a child’s absence from a state was temporary, Oregon courts use a ‘totality of the circumstances’ test, which ‘looks at all the surrounding circumstances of a purported temporary absence, including the intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state.’” Schwartz and Battini, 289 Or App 332, 342-43 (2017). The Court held that under the totality of the circumstances, there is not enough evidence on the record to determine whether the grandparents were “acting as a parent” when in Virginia. Vacated and remanded.