DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KELLY KAY LUNSFORD,

Appellant,

v.

KARA ENGLE and JAKE PHILLIPS,

Appellees.

No. 4D19-774

[January 20, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen M. Miller, Judge; L.T. Case No. 502015DR011293 

NB.

John F. Schutz of John F. Schutz, PL, Palm Beach Gardens, for 

appellant.

No appearance for appellees.

Eddie Stephens and Caryn A. Stevens of Ward, Damon, Posner, 

Pheterson & Bleau, West Palm Beach, for interested parties Trent Engle

and Kimberly Engle.

ON INTERESTED PARTIES’

MOTION TO VACATE AND/OR RECALL MANDATE

GERBER, J.

By order, we granted the interested parties’ motion to vacate and/or 

recall our mandate issued February 7, 2020. We further ordered a new 

briefing schedule and granted the interested parties’ motions to 

supplement the record and the appellant’s motion to supplement the 

record. Based on our review of the now-complete record and the parties’

subsequent briefs, we vacate our opinion issued January 22, 2020, and 

substitute the following opinion in its place.

A child’s maternal grandmother appeals from a Florida court’s orders:

(1) dismissing the maternal grandmother’s petition for temporary legal 

custody of the child; and (2) denying the maternal grandmother’s motion 
2

to disregard an Oregon court’s orders based on the Oregon court’s alleged 

lack of jurisdiction under the Uniform Child Custody Jurisdiction and 

Enforcement Act (“UCCJEA”). The Florida court reasoned it lacked 

jurisdiction over the maternal grandmother’s petition and motion because 

the Oregon court already had exercised jurisdiction over the child.

On appeal, the maternal grandmother raises two arguments: (1) 

because Florida is the child’s home state, and because the Oregon court’s 

jurisdiction was limited to exercising temporary emergency jurisdiction

while the child was in Oregon, the Florida court erred in not exercising 

initial custody jurisdiction over the child; and (2) the Florida court violated 

the maternal grandmother’s due process rights when it communicated 

with the Oregon court during a jurisdiction hearing without allowing the 

maternal grandmother’s counsel to participate.

The appellees, who are the child’s biological parents, have not 

responded in this appeal. The interested parties, who are the child’s

maternal grandfather and step-grandmother and adoptive parents, 

respond, in pertinent part: (1) the Florida court properly dismissed the 

maternal grandmother’s petition for lack of jurisdiction, as the Oregon

court already had jurisdiction over this matter under the UCCJEA, and 

such jurisdiction continued in Oregon through and including the final 

judgment of adoption; and (2) the Oregon court’s final judgment of 

adoption became valid and binding on all persons after the expiration of 

one year from its entry, and such adoption’s validity may not be questioned 

for any reason thereafter under Oregon law.

We agree with the interested parties’ arguments. Therefore, we affirm 

the Florida court’s orders dismissing the maternal grandmother’s petition 

and denying the maternal grandmother’s motion to disregard the Oregon 

court’s orders. Although we agree with the maternal grandmother that the 

Florida court erred in communicating with the Oregon court during the 

jurisdiction hearing without allowing her counsel to participate, we 

conclude such error was harmless under the facts of this case. 

Procedural History

In December 2014, the child was born in Palm Beach County. The 

child resided with the biological mother and the maternal grandmother at 

the maternal grandmother’s home in Palm Beach County.

In February 2015, when the child was two months old, the biological 

mother and the biological father left Florida with the child. By March 

2015, the mother and father had reached Oregon with the child. At that 
3

time, a domestic violence incident occurred when the father struck the 

mother while she was driving and the child was in a rear seat, causing 

them to get into a rollover accident.

The Oregon Department of Human Services (“Oregon DHS”) 

immediately sheltered the child and petitioned the Oregon court to exercise 

temporary emergency jurisdiction over the child. The Oregon circuit court 

granted the petition and placed the child in Oregon DHS’s temporary 

custody. The biological mother returned to Florida without the child or 

the father, and resumed living at the maternal grandmother’s home.

In May 2015, the Oregon court entered orders finding the child was 

within the Oregon court’s jurisdiction, both biological parents had 

admitted to Oregon DHS’s petitions, the Oregon court had placed the child

in Oregon DHS’s temporary custody, and both biological parents had 

acquiesced to the Oregon court’s continuing jurisdiction over the child. 

Later that month, the Oregon court conducted a disposition hearing. The 

Oregon court entered an order noting the biological mother had gone back 

to Florida to live with the maternal grandmother, neither biological parent 

had met the conditions to return the child for in-home placement, and the 

child’s best interests required the child remain in Oregon DHS’s custody

for care, placement and supervision.

 

In the summer of 2015, Oregon DHS began conducting home studies 

to place the child with relatives. Oregon DHS determined the maternal 

grandmother would not be an appropriate placement for the child because 

the biological mother was living with the maternal grandmother. After that 

determination, the mother left Florida and rejoined the father. At some 

point, the mother and father reached Texas, where the father was arrested 

for another domestic violence incident against the mother.

 

In August 2015, Oregon DHS approved the interested parties as an 

appropriate foster care placement for the child, and transported the child 

from Oregon to Florida to live with the interested parties. By this time, the 

child was eight months old.

In November 2015, when the child was eleven months old, the maternal 

grandmother, through counsel, filed a verified petition for temporary 

custody with the Florida circuit court. In the petition, the maternal 

grandmother argued the Florida court had initial custody jurisdiction

because:

[T]he ... child has resided continuously in the State of Florida 

since birth on December 14, 2014, until the travel from the 
4

state with his biological mother and alleged father in March 

2015. [The child’s] absence from [the] jurisdiction from March 

2015 through August 2015 was not due to establishment of 

residence in Oregon, or any other state. From August 2015 

through the present, the ... child continues to reside in Palm 

Beach County.

The maternal grandmother did not serve her petition upon Oregon DHS, 

which, at the time, remained the child’s legal guardian and custodian.

In January and February 2016, after the child turned one year old, the 

Oregon court held permanency hearings to assess the biological parents’

compliance with the Oregon DHS case plans. Because the biological 

parents had made no progress to comply with the case plans, Oregon DHS 

modified the plan goal for the child from “reunification” to “adoption.” 

Thereafter, Oregon DHS filed petitions with the Oregon court to terminate 

the biological parents’ parental rights.

Also in February 2016, the maternal grandmother, through counsel,

filed with the Oregon court a motion for limited participation, seeking to 

pursue permanent guardianship of the minor child, or to be designated as 

the alternative temporary placement for the minor child, and also seeking 

visitation with the minor child. [Unlike Florida, Oregon provides a 

statutory right for grandparents to request visitation with the minor 

grandchild. OR. REV. STAT. § 419B.876 (2016).] The Oregon court denied 

the maternal grandmother’s motion.

In March 2016, when the child was fifteen months old, the maternal

grandmother filed with the Florida court a motion for judicial 

communication with the Oregon court pursuant to section 61.519, Florida 

Statutes (2015). The maternal grandmother’s motion alleged she was 

seeking to argue that Florida, not Oregon, had initial custody jurisdiction. 

The Florida court granted the maternal grandmother’s motion for judicial 

communication and scheduled a hearing with the Oregon court.

In May 2016, when the child was seventeen months old, the jurisdiction 

hearing occurred between the Florida court and the Oregon court. The 

Florida court began the hearing by saying it had received from the Oregon 

attorney general’s office a memo opining that the Oregon court should 

retain jurisdiction over the child. The following discussion then occurred:

[FLORIDA COURT] (to the grandmother’s counsel): You want 

to go ahead and respond to [the Oregon attorney general’s 

memo]?
5

[MATERNAL GRANDMOTHER’S COUNSEL]: I do. And,

Judge, let me give you a copy of some documentation that 

would appear to be pertinent to that issue. Judge, this case 

was --

[OREGON COURT]: I’m sorry, just a minute. I’m sorry. I’m 

happy to have you all put on the record whatever objections 

you want, but this is a conferring call. It’s not really a hearing. 

And, Judge, you agree with me that Oregon retains 

jurisdiction, and ... I have other matters that I have to deal 

with. I’m not sure that I’m prepared to hear any objection on 

that side. Is there any reason why we need to do that?

[FLORIDA COURT]: Not particularly. I mean, according to 

this memo, [the Department of Children and Families (DCF)]

in Florida is not taking the case. Just going through the 

memo, it’s undisputed that Oregon has jurisdiction and [has 

the child] under their care ... that once the Court has 

temporary emergency jurisdiction, the Court and State 

become the home state of the Child so long as no custody 

proceeding in another state has been commenced and if 

determination, if that had been finalized. There is no action 

being taken by Florida. DCF has on multiple occasions 

declined to accept the case. Florida got this case through an 

[Interstate Compact on the Placement of Children] and is 

doing sort of a courtesy supervision. Oregon, again, has 

jurisdiction over the Child, but it’s also in the best interest 

that the case be heard. It’s moving forward in Oregon. The 

biological parents have apparently conceded to Oregon having 

jurisdiction. The biological parents, one of them was in 

custody or is currently in custody in Texas. The Mother has 

wandered around and has come back to Florida, and at some 

point moved back in with the [maternal grandmother] .... And 

then [Oregon DHS] ... said, [“]You can’t live with the 

[biological] mother if you’re going to have the Child there; too; 

that’s not in the Child’s best interest.[”] So - -

[OREGON COURT]: Well, that’s not exactly accurate, but it’s 

close enough at this point. If you need to refer to this memo

- -

[FLORIDA COURT]: I think the memo outlines pretty clear 

that Oregon has jurisdiction over this case.
6

[OREGON COURT]: I agree with you. And ... I have a lot of 

people in the courtroom here, and I don’t see a need to hear 

anymore because we have been working on this and been 

talking about it for a long time. So Oregon will retain 

jurisdiction, and I think that pretty much concludes the 

matter. Is that good with you?

[FLORIDA COURT]: Good with me.

[OREGON COURT]: All right. Thank you very much.

In July and August 2016, when the child was nearly two years old, the 

Oregon court terminated the biological mother’s and the biological father’s 

parental rights.

In March 2018, when the child was over three years old, the Oregon 

court entered a final judgment granting the interested parties’ adoption of 

the child. The State of Florida thereafter issued a birth certificate 

identifying the interested parties as the child’s legal parents.

In June 2018, when the child was nearly three-and-a-half years old, 

the maternal grandmother, through new counsel, filed with the Florida 

court a motion to disregard the Oregon court’s orders based on the Oregon 

court’s alleged lack of jurisdiction under the UCCJEA. The motion was 

the first action which the maternal grandmother had taken in either the 

Oregon court or the Florida court in over two years. The maternal 

grandmother did not serve the motion on either Oregon DHS or the 

interested parties.

The maternal grandmother’s motion argued, in pertinent part, “Any 

Orders entered in Oregon [were] void as Florida continued to have subject 

matter jurisdiction of all proceedings involving the ... child.” At the motion 

hearing, which only the maternal grandmother’s new counsel attended, 

the grandmother’s new counsel further argued: (1) lack of subject matter 

jurisdiction can be raised at any time; (2) under the UCCJEA, because the 

child was born in Florida and returned to Florida, Florida was the child’s 

home state and therefore had initial custody jurisdiction; (3) also under 

the UCCJEA, the Oregon court had only temporary emergency jurisdiction;

(4) the facts that Florida DCF declined to accept supervision over the child,

and that the biological parents had conceded to Oregon having 

jurisdiction, were irrelevant because parties cannot confer jurisdiction

under the UCCJEA; and (5) under the UCCJEA, the Florida court and the 

Oregon court violated the maternal grandmother’s due process rights by 
7

not letting her original counsel be heard during the jurisdiction hearing 

two years earlier.

The Florida court denied the maternal grandmother’s motion. The 

Florida court then entered an order dismissing the maternal 

grandmother’s petition for temporary custody on the ground the Florida 

court lacked initial custody jurisdiction because the Oregon court already 

had exercised jurisdiction over the child.

This appeal followed. The maternal grandmother raises two arguments: 

(1) because Florida is the child’s home state, and because the Oregon 

court’s jurisdiction was limited to exercising temporary emergency 

jurisdiction while the child was in Oregon, the Florida court erred in not 

exercising initial custody jurisdiction over the child; and (2) the Florida 

court violated the maternal grandmother’s due process rights when it 

communicated with the Oregon court during a jurisdiction hearing without 

allowing the maternal grandmother’s counsel to participate.

The interested parties respond, in pertinent part: (1) the Florida court 

properly dismissed the maternal grandmother’s petition for lack of 

jurisdiction, as the Oregon court already had jurisdiction over this matter 

under the UCCJEA, and such jurisdiction continued in Oregon through 

and including the final judgment of adoption; and (2) the Oregon court’s 

final judgment of adoption became valid and binding on all persons after 

the expiration of one year from its entry, and such adoption’s validity may 

not be questioned for any reason thereafter under Oregon law.

Our Review

“We review de novo [a] trial court’s ruling that it lacked subject matter 

jurisdiction under the UCCJEA.” Barnes v. Barnes, 124 So. 3d 994, 995

(Fla. 4th DCA 2013).

Applying de novo review, we agree with the interested parties’ 

arguments. Therefore, we affirm the Florida court’s orders dismissing the 

maternal grandmother’s petition and denying the maternal grandmother’s 

motion to disregard the Oregon court’s orders. Although we agree with the 

maternal grandmother that the Florida court erred in communicating with 

the Oregon court during the jurisdiction hearing without allowing her 

counsel to participate, we conclude such error was harmless under the 

facts of this case. We address each argument in turn.

1. The Florida court properly found it lacked jurisdiction.
8

“The UCCJEA is a jurisdictional act that governs subject matter 

jurisdiction over child custody matters.” McAbee v. McAbee, 259 So. 3d 

134, 139 (Fla. 4th DCA 2018) (citation omitted).

“The general purposes of the UCCJEA are to avoid jurisdictional 

competition and conflict with other courts in child custody matters; 

promote cooperation with other courts; insure that a custody decree is 

rendered in the state which enjoys the superior position to decide what is 

in the best interest of the child; deter controversies and avoid relitigation 

of custody issues; facilitate enforcement of custody decrees; and promote 

uniformity of the laws governing custody issues.” McIndoo v. Atkinson, 

159 So. 3d 227, 229 n.1 (Fla. 4th DCA 2015) (citation omitted).

Both Florida and Oregon have adopted the UCCJEA and, as a result, 

both Florida’s and Oregon’s UCCJEA statutes are nearly identical in most 

respects. Compare §§ 61.501–61.542, Fla. Stat. (2015), with OR. REV. STAT. 

§§ 109.701–109.834 (2015).

 

Within Oregon’s codification of the UCCJEA, section 109.751, Oregon 

Revised Statutes (2015), entitled “Temporary Emergency Jurisdiction,” 

provides, in pertinent part:

(1) A court of this state has temporary emergency jurisdiction 

if the child is present in this state and ... it is necessary in an 

emergency to protect the child because the child ... is 

subjected to or threatened with mistreatment or abuse.

(2) If there is no previous child custody determination that is 

entitled to be enforced ... and a child custody proceeding has 

not been commenced in a court of a state having jurisdiction ...

a child custody determination made under this section remains 

in effect until an order is obtained from a court of a state having 

jurisdiction ... If a child custody proceeding has not been or is 

not commenced in a court of a state having jurisdiction ... a 

child custody determination made under this section becomes 

a final determination if the determination so provides and this 

state becomes the home state of the child.

(3) If there is a previous child custody determination that is 

entitled to be enforced ... or a child custody proceeding has 

been commenced in a court of a state having jurisdiction ... 

any order issued by a court of this state under this section 

must specify in the order a period that the court considers 

adequate to allow the person seeking an order to obtain an 
9

order from the state having jurisdiction .... The order issued 

in this state remains in effect until an order is obtained from 

the other state within the period specified or the period 

expires.

....

OR. REV. STAT. § 109.751 (2015) (emphasis added).

Oregon’s temporary emergency jurisdiction statute mirrors Florida’s 

temporary emergency jurisdiction statute, section 61.517, Florida Statutes 

(2015). See K.I. v. Dep’t of Children & Families, 70 So. 3d 749, 751 (Fla. 

4th DCA 2011) (under section 61.517(1), “the court of another state may 

exercise temporary jurisdiction in an emergency situation to protect a child 

even though the court with initial custody jurisdiction has exclusive, 

continuing jurisdiction”).

Here, the Oregon court, under section 109.751(1), Oregon Revised 

Statutes (2015), had temporary emergency jurisdiction over the child when 

the child was injured in the Oregon car accident, because that event, 

caused by domestic violence between the father and mother while the child 

was in the car, constituted an emergency in which the child was subjected 

to mistreatment.

Because the maternal grandmother’s custody petition was not 

commenced until after the Oregon court began exercising temporary 

emergency jurisdiction, the Oregon court was permitted, under section 

109.751(2), Oregon Revised Statutes (2015), to continue “exercising 

temporary jurisdiction to make a custody determination ... or even become 

‘a final determination,’ if no other court steps up.” Dep’t of Human Servs. 

v. J. S., 464 P.3d 157, 165 (Or. Ct. App. 2020). The Oregon court made a 

final determination when it terminated the biological parents’ parental 

rights, and then approved the interested parties’ adoption of the child.

Based on the foregoing, the Florida court correctly found the Oregon 

court had jurisdiction over the child under the UCCJEA, and correctly

dismissed the maternal grandmother’s petition for lack of jurisdiction.

2. The Oregon court’s adoption judgment became final and 

binding on all persons after one year from its entry.

In addition to the foregoing, by the time the maternal grandmother filed 

this appeal to contest the Florida court’s lack of subject matter jurisdiction

determination, the child’s custody determination was already final.
10

Section 109.381(3), Oregon Revised Statutes (2015), states, in pertinent 

part:

After the expiration of one year from the entry of a judgment of 

adoption in this state the validity of the adoption shall be 

binding on all persons, and it shall be conclusively presumed 

that the child’s natural parents and all other persons who 

might claim to have any right to, or over the child, have 

abandoned the child and consented to the entry of such 

judgment of adoption, and that the child became the lawful 

child of the adoptive parents or parent at the time when the 

judgment of adoption was rendered, all irrespective of 

jurisdictional or other defects in the adoption proceeding. After 

the expiration of the one-year period no one may question the 

validity of the adoption for any reason, either through collateral 

or direct proceedings, and all persons shall be bound thereby.

...

OR. REV. STAT. § 109.381(3) (emphases added); see also J.B.D. v. Plan 

Loving Adoptions Now, Inc., 178 P.3d 266, 270 (Or. Ct. App. 2008) (section

109.381(3) “is a statute of limitation.”)

Here, the Oregon court entered its adoption judgment in the interested 

parties’ favor on March 5, 2018. The maternal grandmother filed her 

notice of appeal with this court on March 18, 2019. Thus, even if we were 

to have concluded that a jurisdictional defect in the Oregon proceeding 

existed (which we do not, as indicated above), the Oregon adoption 

judgment became final and binding upon all persons. As such, we have 

no authority to question the validity of the adoption for any reason in this 

collateral proceeding.

3. The Florida court’s error in communicating with the Oregon 

court during the jurisdiction hearing without allowing the 

maternal grandmother’s counsel to participate was harmless.

Section 109.731, Oregon Revised Statutes (2015), entitled 

“Communication Between Courts,” provides, in pertinent part:

(1) A court of this state may communicate with a court in 

another state concerning a proceeding arising under [the 

UCCJEA].
11

(2) The court may allow the parties to participate in the 

communication. If the parties are not able to participate in 

the communication, they must be given the opportunity to 

present facts and legal arguments before a decision on 

jurisdiction is made.

....

OR. REV. STAT. § 109.731 (2015) (emphasis added). As can be seen under 

the Oregon communication statute, subsection (2)’s first sentence uses the 

permissive word “may” to describe the parties’ ability to participate in the 

communication between courts. But subsection (2)’s second sentence 

uses the mandatory word “must” to describe the parties’ ultimate ability 

to present facts and legal arguments before a jurisdiction decision is made.

Florida’s version of the UCCJEA’s “Communication Between Courts”

statute, section 61.511, Florida Statutes (2015), contains mandatory 

language throughout subsection (2)’s second sentence. Section 61.511 

provides, in pertinent part:

(1) A court of this state may communicate with a court in another 

state concerning a proceeding arising under this part.

(2) The court shall allow the parties to participate in the 

communication. If the parties elect to participate in the 

communication, they must be given the opportunity to present facts 

and legal arguments before a decision on jurisdiction is made.

....

§ 61.511, Fla. Stat. (2015) (emphasis added).

As our sister court held in Johnson v. Johnson, 88 So. 3d 335 (Fla. 2d 

DCA 2012), “[w]e construe the words ‘shall’ and ‘must’ in [section 

61.511(2)] to impose a mandatory duty upon the trial court that must be 

performed before ruling.” Id. at 338 (emphasis added). See also Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 

112 (2012) (under the “Mandatory/Permissive Canon,” “[m]andatory 

words impose a duty; permissive words grant discretion.”).

Here, regardless of the Oregon court’s interruption, the Florida court 

erred in not allowing the maternal grandmother’s counsel “to participate 

in the communication ... [and] be given the opportunity to present facts 

and legal arguments before a decision on jurisdiction is made.” § 
12

61.511(2), Fla. Stat. (2015). However, we consider this procedural error to 

be harmless in light of the adoption’s finality. The adoption’s finality 

makes this case distinguishable from our more general precedent 

addressing section 61.511(2). See Haugabook v. Jeffcoat-Hultberg, 219 So. 

3d 65, 67 (Fla. 4th DCA 2016) (“[T]he failure to allow a party to participate 

in the communication with a court in another state requires reversal

[under section 61.511].”).

Conclusion

Based on the foregoing, we affirm the Florida court’s orders dismissing 

the maternal grandmother’s petition for temporary legal custody of the 

child, and denying the grandmother’s motion to disregard the Oregon 

court’s orders.

Affirmed.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.