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Kyle v. State

Court of Appeals of Arkansas, Division II

October 30, 2019

BRENDA KYLE AND THOMAS KYLE APPELLANTS
v.
STATE OF ARKANSAS, OFFICE OF CHILD SUPPORT ENFORECEMENT; SHEILA ALWARD; AND PHILLIP K. POLLARD APPELLEES

          APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18DR-09-842] HONORABLE DAN RITCHEY, JUDGE.

          Appellate Solutions, PLLC, d/b/a/ Riordan Law firm, by: Deborah Truby Riordan, for appellants.

          James C. Hale III, for separate appellee Sheila Bailey.

          Bart F. Virden, Judge.

         Brenda and Thomas Kyle appeal the Crittenden County Circuit Court's determination that it has continuing and exclusive jurisdiction over the matter of the custody of BP2 (born 06/23/09). We reverse and dismiss.

         I. Relevant Facts

         This case began on October 9, 2009, when the Office of Child Support Enforcement filed a petition for a determination of child support owed by Phillip Pollard, the father of BP1, PP, and BP2. [1] On April 14, 2010, the Crittenden County Circuit Court entered an order of support stating that Phillip owes a duty of support to BP2 and his two older siblings. On May 7, Sheila Bailey (Alward), BP2's maternal grandmother, filed a motion to intervene and a petition for ex parte custody and permanent custody. Sheila explained that the children's mother, her daughter Ashley, had been arrested on drug charges and that Ashley's minor children had been out of their mother's care for an "extended period of time" before the arrest. Sheila contended that Phillip had no contact with the children, exercised limited and sporadic visitation, had never paid child support, and lived in an unstable and unfit home; thus, he was an unfit person to have custody of the children, and she should be granted custody. The circuit court granted Sheila's petition.

         On August 10, the circuit court entered an order setting forth that "a guardianship is desirable to protect the interests of the minor children" and directed that Sheila receive all child-support payments.

         Ashley died in October 2013. On February 6, 2014, Sheila wrote a letter allowing Brenda and Thomas Kyle (BP2's paternal great aunt and uncle) to enroll BP2 in a Mississippi school, stating that while she is the legal guardian of BP2, "he stays with my sister Brenda Kyle in Hernando, MS."

         On December 15, 2016, the Kyles filed a petition for adoption of BP2 in the DeSoto County Chancery Court in Mississippi. On January 13, 2017, Phillip, then living in Hernando, Mississippi, filed an affidavit in the DeSoto County Chancery Court voluntarily relinquishing his parental rights. On May 16, 2017, the Mississippi court entered an order for emergency custody in favor of the Kyles and enjoined Sheila from removing BP2 from their custody. The order granting emergency custody was restated and confirmed by the Mississippi court in subsequent orders entered June 5, August 9, and August 28, 2017, pending the Arkansas court's determination of jurisdiction.

         On May 24, 2017, Sheila filed in the Crittenden County Circuit Court a written objection to the transfer of jurisdiction to the DeSoto County Chancery Court. In her objection, Sheila asserted the following:

• On December 15, 2016, Brenda and Thomas Kyle filed a petition for adoption of BP2 in the DeSoto County Chancery Court.
• Sheila answered the petition for adoption and filed a counterpetition requesting that the court recognize a foreign decree and to transfer jurisdiction back to ...

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