2014 VT 32


In re A.W. (2013-375)
 
2014 VT 32
 
[Filed 11-Apr-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 32

 

No. 2013-375

 

In re A.W., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Franklin Unit,


 


Family Division


 


 


 


February Term, 2014


 


 


 


 


James
  R. Crucitti, J. (Emergency Care Order); Geoffrey W. Crawford, J. (CHINS
  Decision)


 

Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Appellant Mother.
 
Michael Rose, St. Albans, for Appellant Father.
 
William H. Sorrell, Attorney General, and Bridget C. Asay,
Assistant Attorney General,
  Montpelier, and Jody Racht, Assistant Attorney
General, Waterbury, for Appellee.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund
and Robinson, JJ., and Burgess, J. (Ret.), 
                    
Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Mother and father appeal from a family
court order adjudicating the minor A.W. to be a Child in Need of Care and
Supervision (CHINS).  They contend: (1) the court lacked jurisdiction
under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); and
(2) the evidence did not support the trial court’s finding that the child was
without proper parental care.  We affirm.
¶ 2.            
The rather tangled background to this dispute may be summarized as
follows.  Mother and father were married and living in Enosburg, Vermont
in January 2012 when mother became pregnant with A.W.  Mother had
struggled with substance abuse and mental health issues, which continued during
the pregnancy.  Father had a history of alcohol abuse.  Based on
concerns from its earlier involvement with mother’s older children,[1] the Department for Children and Families
interviewed mother during her pregnancy and learned of her continued use of
alcohol.  In April 2012, the police responded to two incidents involving
mother and father, one in which mother allegedly assaulted father because she
thought he was drinking too much, and the other in which both mother and father
were found intoxicated in a hotel in St. Albans, Vermont, resulting in a charge
against father for disorderly conduct.  
¶ 3.            
In June 2012, the parents moved to Plattsburgh, New York, although
mother maintained her medical care in Vermont at Fletcher Allen Health Care
(FAHC).  A.W. was born at FAHC on September 17, 2012.  DCF made a
report that day to the New York child protection agency in Plattsburgh
expressing its concerns about the parents’ continued alcohol and possible drug
abuse.      
¶ 4.            
After two to three days in hospital at FAHC, mother was discharged with
A.W., and the family went to father’s parents’ house in Swanton, Vermont before
returning to their apartment in Plattsburg.  About a week after A.W.’s
birth, on September 25, 2012, the New York police responded to a dispute
between mother and father.  This led to mother’s hospitalization for
in-patient psychiatric care at the Champlain Valley Physician’s Hospital in
Plattsburgh.  
¶ 5.            
While mother was hospitalized, father took A.W. to live with his parents
in Swanton.  The New York child protection agency, in response, advised
DCF that there was an open case involving the family and requested that DCF
contact father in Vermont.  Two DCF caseworkers visited father at his
parents’ house in early October 2012.  Father told them that he could not
remain sober while he was with mother, and that he planned to live with A.W. at
his parents’ house.  Over the next few days, DCF officials met with father
and established a safety plan for the child in which father agreed to engage in
substance abuse services and to apply for benefits to help support himself and
the child at his new residence.  Father also filed a relief-from-abuse
complaint against mother in Vermont, and was issued a temporary order. 
Mother was released from the hospital after a few days and filed her own
relief-from-abuse petition in New York, but testified that she intentionally
failed to appear at the scheduled hearing so that it would be dismissed.[2]   
¶ 6.            
On October 5, 2012, DCF received information that father’s substance
abuse was continuing and filed a CHINS petition in response.  A few days
later, on October 8, 2012, mother and father appeared at the scheduled hearing
on father’s relief-from-abuse petition,  where father had it dismissed.
 On the same day, the State filed a request for an emergency care order
supported by a DCF social worker’s affidavit stating that the child’s
grandfather in Swanton had reported that, following the relief-from-abuse
hearing, the parents had returned home, picked up A.W., and left.  The
grandfather believed that they were returning to Plattsburgh.  The grandfather
stated that mother had behaved aggressively and that father may have been using
drugs.  The court, in response, issued an order finding that father had
“stopped the safety plan that was necessary for the safety of the child,” and
transferred temporary custody to DCF pending a hearing scheduled for the
following day.  The parents did not appear at the hearing, and the court
issued an order noting that the parents’ and the child’s “whereabouts [were]
unknown,” and that the State “suspects they have returned to New York.”
 The court directed DCF to “prepare a temporary care order which will
allow DCF to take custody in either state.”    
¶ 7.            
The child was taken into DCF custody the following day, October 10,
2012, in Vermont, where he was attending a medical appointment with
mother.  Following a hearing the next day, where both parents were
represented, the court issued a temporary care order finding that the parents
had been abusing drugs and alcohol, that returning custody to the parents would
result in substantial danger to the health and safety of the child, and that
temporary custody would remain with DCF.  The child was placed with his
paternal grandparents in Swanton, where he has since remained.
   
¶ 8.            
Shortly before the next scheduled hearing in December 2012, mother moved
to dismiss the proceeding for lack of jurisdiction.  Mother maintained
that New York was the child’s home state under the UCCJEA, and that there was
no basis under the Act for an assertion of emergency jurisdiction in Vermont.
 In support of the motion, mother filed a letter from New York’s child
protection agency to mother, dated December 5, 2012, stating that she had been
the subject of an investigation commenced on September 17, 2012, the date of
A.W.’s birth, that some evidence had been uncovered to support a determination
that the child had been maltreated or abused, and consequently that she would
remain in the “New York State Child Abuse and Maltreatment Register” unless she
requested an amendment or expungement.  The State opposed the motion to
dismiss, asserting that Vermont could exercise jurisdiction under the UCCJEA as
either the child’s home state, or on the basis that there was no home state,
and Vermont had a significant connection with the family, or under the Act’s
provision for temporary emergency jurisdiction.  The State subsequently
filed a letter from New York’s child protection agency, dated January 16, 2013,
stating that its case concerning A.W. and his parents had been closed on
November 14, 2012 because the child had been taken into DCF custody on October
10, 2012, and the child was residing with his paternal grandparents in
Vermont.  The State also filed a memorandum outlining the family’s Vermont
connections, including the fact that father had retained a Vermont driver’s
license and vehicle registration.   
¶ 9.            
Following a hearing on the motion to dismiss in January 2013, the trial
court issued a brief entry order, ruling that, while Vermont was not the
child’s home state, the court had properly exercised temporary emergency
jurisdiction.  The court also directed DCF to contact New York’s child
protection authorities to inquire about transferring the case, and set the
matter for a further hearing “to monitor progress.”  The State, in
response, filed a memorandum asking the trial court, presumably pursuant to 15
V.S.A. § 1068, to contact the New York State Family Court to determine whether
a transfer would be in the best interests of the child.  The court
did not do so.   
¶ 10.        
At the next scheduled hearing in March 2013, the State reported that the
child remained with his grandparents in Swanton, that the parents remained in
New York, and that the matter had not been transferred to the New York child
protection agency.  Mother asserted that any emergency giving rise to the
transfer of custody had passed, and requested that the case be dismissed and
custody returned to the parents.  The State countered that the chaos
surrounding the child at birth validated the court’s exercise of emergency
jurisdiction, and that the circumstances justified retaining jurisdiction
through to the merits hearing on the CHINS petition.    
¶ 11.        
In response to these arguments, the court noted that there appeared to
be no judicial proceeding in New York and no open case with the New York child
protection agency, acknowledged the difficulties which the child’s residence in
Vermont posed for the parents,    expressed the need for an
“orderly transition” of custody to the parents, but ultimately remained
reluctant to transfer custody or dismiss the case without more information
about the parents’ situation.  The parties agreed to return at a follow-up
hearing with more specific information regarding the parents’ housing
situation, employment, daycare arrangements, and the services in which they
were enrolled.     
¶ 12.        
At the next hearing in early April 2013, however, the court learned that
father had since been incarcerated in New York on a domestic violence charge,
that mother had moved from Plattsburgh to Norfolk, New York, that the extent of
her participation in substance abuse and other services could not be verified,
and that she had recently been a passenger in a vehicle which struck and killed
a pedestrian.  Mother restated her request for dismissal of the CHINS
proceeding on jurisdictional grounds, while the State claimed that Vermont was
the child’s home state under the UCCJEA and that the matter should proceed to a
merits hearing.  The court declined to return custody to the parents,
retained jurisdiction, and set the matter for a merits hearing.    
¶ 13.        
The merits hearing was held in September 2013, and the court issued a
written ruling that month, concluding that A.W. was CHINS.  The court
initially addressed the jurisdictional issue, ruling that it had emergency
jurisdiction “when the petition was filed since A.W. was present in Vermont”
and that, in the absence of any court proceeding in another state, its
jurisdiction to rule on the merits had continued “by default.”  On the
merits, the court found that A.W. had been without proper parental care since
birth “due to the persistent and serious problems experienced by his parents
with mental health, alcohol abuse, and domestic violence.”  Both parents
have appealed.[3] 

¶ 14.        
We turn first to the parents’ renewed assertion that the court lacked
subject-matter jurisdiction.  Because all events occurred after its
effective date, this case is governed by the UCCJEA, 15 V.S.A. §§ 1061-1096,
which replaced the Uniform Child Custody Jurisdiction Act (UCCJA).[4]  Like the former law, the UCCJEA
dictates when a court of this State has jurisdiction to decide child custody
matters.  The jurisdictional criteria “to make an initial child custody
determination” are set forth in 15 V.S.A. § 1071, and include, in essence, four
circumstances: (1) where “Vermont is the home state of the child on the date of
the commencement of the proceeding” or “Vermont was the home state of the child
within six months before the commencement of the proceeding and the child is
absent from Vermont, but a parent or person acting as a parent continues to
live in Vermont,” id. § 1071(a)(1); (2) “[a] court of another state does
not have jurisdiction” under (1) above, or “a court of the home state has
declined to exercise jurisdiction on the ground that Vermont is the more
appropriate forum” and a parent and the child have a significant connection
with Vermont and substantial evidence is available in Vermont “concerning the
child’s care, protection, training, and personal circumstances,” id.
§ 1071(a)(2); (3) “[a]ll courts having jurisdiction” under  (1) or
(2) above “have declined to exercise jurisdiction,” id. § 1071(a)(3);
and (4) “[n]o court of any other state would have jurisdiction under the
criteria specified in” (1), (2) or (3) above, id. § 1071(a)(4). 
¶ 15.        
In addition, the UCCJEA contains a provision authorizing a Vermont court
to exercise “temporary emergency jurisdiction if the child is present in
Vermont, and the child has been abandoned or it is necessary in an emergency to
protect the child because the child, or a sibling or parent of the child, is
subjected to or threatened with mistreatment or abuse.”  Id.
§ 1074(a).  This section goes on to provide that, where “a child
custody proceeding has not been commenced in a court of a state having
jurisdiction,” an order under this section becomes a final determination, “and
Vermont becomes home state of the child.”  Id. § 1074(b).
¶ 16.        
The parents here initially respond to the trial court’s determination
that it had “temporary emergency jurisdiction” under 15 V.S.A. § 1074(a),
arguing that § 1074(a) did not apply because A.W. was not “present in Vermont”
when the court issued the emergency care order, and because the child was not
“subjected to or threatened with mistreatment or abuse.”  Id. 
They also dispute that the court properly exercised continued jurisdiction to
address the CHINS petition, arguing that a “child custody proceeding” had been
commenced in New York, so that the Vermont court exercising emergency
jurisdiction was required to contact the court in New York pursuant to §
1074(d).  
¶ 17.        
We need not address these claims, however, inasmuch as we conclude that
jurisdiction was otherwise properly established under § 1071 at the time the
CHINS petition was filed on October 5, 2012.  The
trial court’s jurisdictional ruling under the UCCJEA “is a question of law that
we review de novo.”  In re C.P., 2012 VT 100, ¶ 13, 193 Vt. 29, 71
A.3d 1142.  Any factual findings by the court underlying its ruling are
reviewed for clear error.  Pahnke v. Pahnke, 2014 VT 2, ¶ 17, ___
Vt. ___, ___ A.2d___; see also Harignordoquy v. Barlow, 2013 WY 149, ¶
16, 313 P.3d 1265 (noting that while trial court’s jurisdictional ruling under
the UCCJEA is reviewed de novo, its underlying factual findings are reviewed
for clear error); In re Z.Z., 2013 UT App 215, ¶ 8, 310 P.3d 772 (same).
¶ 18.        
Like its predecessor, the UCCJEA defines “home state” to mean the state
in which the child lived with a parent or a person acting as parent “for at
least six consecutive months immediately” preceding the commencement of the
proceeding, or “[i]n the case of a child less than six months of age, the term
means the state in which the child lived from birth with any of the persons
mentioned.” 15 V.S.A. § 1061(7); see also 15 V.S.A. § 1031(5) (repealed July 1,
2011).  Periods of “temporary absence” by any of the mentioned persons are
considered to be “part of” this six-month or less-than-six-months period. 
Id.  We construed this definition of “home state” in In re
Cifarelli, 158 Vt. 249, 611 A.2d 394 (1992), which involved a child who was
born and lived in Bermuda for one month, was taken to New York for a brief
period, and then moved with her family to Vermont.  Because the child was
not yet six months old when a guardianship proceeding commenced in Vermont,
following the death of her parents, we concluded that the child effectively “ha[d]
no home state” since she had neither lived consecutively in one state for six
months nor “had she lived in any one state ‘from birth’ to the commencement of
the proceeding.”  Id. at 253-54, 611 A.2d at 397; see also In re
D.T., 170 Vt. 148, 152, 743 A.2d 1077, 1081 (1999) (holding that, with
respect to a child less than six months old, “Vermont is not [the child’s]
‘home state’ because he did not live in Vermont ‘from birth’”).   
¶ 19.        
The trial court here found, and the evidence showed, that A.W. was born
in Vermont on September 17, 2012 and then returned to New York, where his
parents had moved about two months earlier.  As the court further found,
about a week after A.W.’s birth, father took the child to his parents’ house in
Vermont with the stated intention of residing there and took steps to obtain
benefits and services to support himself and the child in Vermont.  Father
and A.W. then lived in Vermont for almost two weeks before DCF filed a CHINS
petition and emergency care request, at which point they returned briefly with
mother to New York before the child was taken into custody in Vermont.  
¶ 20.        
Thus, A.W. was barely three weeks old when the instant proceeding
commenced, and had plainly not “lived from birth” in either Vermont or New York
as this requirement was  interpreted in Cifarelli.  As noted,
although the parents resided in New York when A.W. was born, father took the
child to Vermont with the intention of residing there when the child was only a
week old, applied for welfare benefits, committed to a safety plan for the
child, and continued to reside in Vermont until the CHINS petition was filed
about two weeks later.  The facts as found by the trial court thus do not
support a conclusion that the child had “lived from birth” in either New York
or Vermont, and neither, therefore, qualifies as the child’s home state under
the UCCJEA.   
¶ 21.        
Although the trial court here concluded that New York was the child’s
home state and that the time spent in Vermont was merely a “temporary absence”
from New York, its factual findings do not support these conclusions.  As
noted, the question of what constitutes a child’s home state under the UCCJA or
its successor the UCCJEA is a question of law which this Court reviews de novo. 
In re C.P., 2012 VT 100, ¶ 13.  Furthermore, courts addressing the
question of “temporary absence” have noted that the term is not defined under
the UCCJA or its successor the UCCJEA, and many, therefore, have adopted a
“totality of the circumstances” test, looking to whether all of the facts as
found by the trial court, including the parent’s purpose in removing the child
from one state to another and the duration of the absence, support a conclusion
that a child’s absence was temporary.  See, e.g., In re S.M., 938
S.W.2d 910, 918 (Mo. Ct. App. 1997) (holding that, in “resolving the temporary
absence issue, the totality of the circumstances test is best” and concluding
that, “[r]eviewing the totality of the circumstances, here, it is clear from
the record that the three months which the children spent in Kansas . . . was a
temporary absence”); Chick v. Chick, 596 S.E.2d 303, 308-09 (N.C. Ct.
App. 2004) (adopting totality of circumstances test to determine whether absence
from state was temporary under UCCJEA, and concluding that court’s findings
supported holding that absence was temporary).
¶ 22.        
Here, the court’s findings that father brought the child to Vermont with
the specific intent to reside here, and took additional, affirmative steps to
establish residency in Vermont, including applying for welfare benefits and
agreeing to follow a safety plan, are not reconcilable with its conclusion that
the time period which the child spent in Vermont, up to and including the date
of CHINS filing, was merely a “temporary absence” from New York.  At best,
it would appear that the circumstances and intentions of the parties fluctuated
over a short period, and do not support a conclusion that either Vermont or New
York was the child’s home state.
¶ 23.        
 Accordingly, we hold that neither Vermont nor New York meets the
definition of A.W.’s “home state” under the UCCJEA, and we therefore turn to §
1071(a)(2) to determine whether there are sufficient family connections and
evidence in Vermont for the courts here to exercise jurisdiction at the time of
the CHINS filing.  See In re E.T., 137 P.3d 1035, 1042-43 (Kan. Ct.
App. 2006) (holding that child under six months who was born in Missouri and
later lived in Kansas “did not have a ‘home state’ ” when the child protection
proceeding commenced, and therefore the court must determine whether Kansas had
sufficient connections and evidence to exercise jurisdiction); In re R.P.,
966 S.W.2d 292, 300 (Mo. Ct. App. 1998) (holding that infant who was born in
Kansas and thereafter lived several months in Missouri had no “home state”
under the UCCJA, and therefore court must look to which state had most
significant connection and evidence concerning family).  This is ultimately
a legal issue we must resolve based on the facts as found by the trial
court.  See, e.g., Hart v. Hart, 327 S.E.2d 631, 636-37 (N.C. Ct.
App. 1985) (holding that trial court’s factual findings were sufficient to
support the conclusion that the children and at least one parent had sufficient
connections with the State, and substantial evidence concerning their welfare,
to support the exercise of jurisdiction). 
¶ 24.        
We conclude that Vermont’s ties to this matter are sufficient to
exercise jurisdiction.  As the trial court found, when this proceeding
commenced the child was residing in Vermont with his father and paternal
grandparents.  Father had applied for housing and other benefits in
Vermont to help support himself and A.W. and had continued to retain a Vermont
driver’s license and vehicle registration.  Father had entered into a
safety plan with DCF in which he agreed to participate in a variety of services
in Vermont.  Thus the child and at least one parent had a significant
connection with Vermont, and the most direct and best evidence concerning the
child’s day-to-day care and well-being at the time of the CHINS petition was in
Vermont.  Accordingly, we conclude that Vermont is the appropriate state
to exercise jurisdiction.    
¶ 25.        
For similar reasons we reject father’s additional assertion that, even
if the Vermont family court had jurisdiction, it should have declined to
exercise it at the CHINS proceeding on the basis of forum non conveniens. 
See 15 V.S.A. § 1077(a) (stating that a Vermont court which has jurisdiction
“may decline to exercise it” if it determines that it is an “inconvenient
forum” and that “a court of another state is a more appropriate forum”). 
Initially, we note that neither parent sought to raise this issue “upon
motion,” as provided by § 1077(a).  See Follo v. Florindo, 2009 VT
11, ¶ 15, 185 Vt. 390, 970 A.2d 1230 (noting that issue not raised at trial is
waived on appeal).  Moreover, although the parents reside in New York, the
child’s placement with his paternal grandparents in Vermont, his continued
residence there during the intervening months, the evidence concerning his
day-to-day care, the absence of any New York judicial child custody proceeding,
and the trial court’s understandable reluctance to dismiss the case with no
plan in place for the child, all supported its retention of jurisdiction
through the merits proceeding.  See 15 V.S.A. § 1077(b) (providing that,
in determining whether Vermont is an inconvenient forum, court shall consider
“all relevant factors,” including which State’s exercise of jurisdiction may
best protect the child, the nature and location of the evidence, and the
familiarity of the court with the facts and issues in the litigation). 
Accordingly, we find no abuse of discretion in the court’s exercise of
jurisdiction.  Rocissono v. Spykes, 170 Vt. 309, 317, 749 A.2d 592,
598 (2000) (noting that the decision to decline jurisdiction under the UCCJA
“is discretionary and thus subject to review under an abuse-of-discretion
standard”).   
¶ 26.        
On the merits, the parents contend that the evidence was insufficient to
support the court’s determination that A.W. was without proper parental
care.  They assert, in particular, that the principal concern at the time
of the CHINS petition and emergency care order was the possible presence of
drugs or alcohol in the baby’s system, and cite the State’s concession that
tests subsequently showed that this was not the case.  They also assert
that the trial court improperly relied on events occurring after the filing of
the petition.  
¶ 27.        
The record shows, however, that the CHINS petition was predicated on a
variety of risks apart from the possibility of drugs or alcohol in A.W.’s
system.  To be sure, the State’s concerns resulted from a number of
circumstances preceding the child’s birth, including father’s alcohol and drug
use and mother’s substance abuse and mental health issues, as well as a series
of incidents involving public intoxication and domestic violence which resulted
in criminal charges against both parents.  The source of the concerns also
included an incident when A.W. was about a week old in which the parents became
involved in a physical dispute and father tried to pull the baby away from
mother, resulting in police intervention and mother’s hospitalization for
mental health treatment, and more recently father’s violation of the safety
plan to which he had agreed by failing to attend substance abuse counseling and
by continuing to use illegal drugs.  The evidence introduced at the CHINS
hearing substantiated these concerns, and showed that substance abuse and
domestic violence continued to plague both parents.  This was sufficient
to support the court’s conclusion that A.W. was “without proper parental care
due to the persistent and serious problems experienced by his parents with
mental health, alcohol abuse, and domestic violence.”  See In re D.T.,
170 Vt. at 156, 743 A.2d at 1084 (“The trial court’s findings will stand unless
clearly erroneous, and its conclusions of law will be upheld if supported by
the findings.”).    
¶ 28.        
The record further discloses that neither parent objected to the
admission of evidence concerning matters occurring after the CHINS petition;
indeed mother affirmatively agreed with the court that it should consider
events “up to the present date,” and both parents attempted to show recent
progress in addressing their substance abuse issues.  Objections that are
waived or not raised at trial are not preserved for review on appeal.  Florindo,
2009 VT 11, ¶ 15.  Accordingly, we find no basis to disturb the judgment.
Affirmed.  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 29.        
ROBINSON, J., concurring.   I concur completely in the
majority’s opinion.  I write separately to make two points.  First,
the consequences of the delay in resolving the ongoing jurisdictional issues in
this case could have been tragic.  The CHINS petition was filed on October
5, 2012.  The request for an emergency care order was filed on October 8,
2012, and the order issued shortly thereafter.  Mother’s first motion to
dismiss for lack of jurisdiction was filed on December 4, 2012.  The trial
court subsequently issued several entry orders raising doubts about its own
authority to continue to assert jurisdiction and urging the parties to take
steps to initiate a proceeding in New York.  However, the trial court did
not on its own take steps to contact the New York court or courts in which the
proceedings referenced in the parties’ various pleadings were initiated, see 15
V.S.A. § 1074(d), and did not dismiss the action.  The jurisdictional
question was not definitively resolved by the trial court until September 17,
2013, nearly a year after the child was removed from his parents.  During
that year, the child lived with his paternal grandparents in Vermont, and
parents’ ability to demonstrate their compliance with DCF’s requirements, and
to build bonds with the child, were significantly constrained by geography and
life circumstance.  Had the trial court’s earlier instincts that it lacked
continuing jurisdiction proven correct, the trial court would have been in the
position of removing the child from the only home and parent figures he had
truly known for the first year of his life, and returning him to parents with
whom he had visited weekly, but had not lived since he was three weeks
old.  If they deemed it appropriate, New York authorities would have then
started the whole process from scratch.
¶ 30.        
Although the reason for nearly a full year’s delay in deciding the
question is not entirely clear from the record, it seems to be the result of a
series of decisions, actions, and inactions by the parties and the court rather
than a single identifiable failing.  Moreover, it is clear that the trial
court acted, or refrained from acting, in part due to concern for the well
being of the dependent child over whose welfare the court had ultimate
decisionmaking authority.  In the absence of a plan to provide for the
child’s welfare, the court was reluctant to simply dismiss the case.  And,
of course, as more time passed, the prospect of such a precipitous transition
no doubt felt more untenable.
¶ 31.        
The Legislature has recognized the risk of dragging out these
jurisdictional challenges, and has specifically instructed that “[i]f a
question of existence or exercise of jurisdiction under this chapter is raised
in a child custody proceeding, the question, upon request of a party, must be
given priority on the calendar and handled expeditiously.”  15 V.S.A.
§ 1065.  Although it is not clear that the parties aggressively
sought priority in scheduling, it is clear that the jurisdictional question in
this case was not handled expeditiously.  
¶ 32.        
This was not the first, and won’t be the last CHINS case involving
thorny issues under uniform child custody laws.  See, e.g. In re C.P.,
2012 VT 100, 193 Vt. 29, 71 A.3d 1142 (CHINS case involving parents living in
New York and child who had been staying with an aunt in Vermont prior to the
CHINS petition).  Going forward, I urge everyone in the process—the State,
counsel for parents and children in CHINS cases, court staff, and judges—to be
vigilant about bringing such jurisdictional questions to a speedy resolution. 
¶ 33.        
My second point goes to father’s argument that the trial court abused
its discretion in failing to decline to exercise jurisdiction on the ground
that Vermont is an inconvenient forum.  15 V.S.A. § 1077.  For
the reasons set forth in the majority’s opinion, I believe the trial court’s
decision to exercise its jurisdiction was within its broad discretion. 
But I also want to emphasize that had the trial court dismissed this case on
inconvenient forum grounds, I would have sustained that decision as well. 
A host of factors would have supported such a decision.  The financial
circumstances of the parties were such that travel to Vermont to participate in
these proceedings was and is no doubt burdensome, id. § 1077(b)(4),
and much of the evidence required to resolve the litigation was and is largely
in New York, where the parents lived and availed themselves of services
designed to improve their parenting capabilities, id.
§ 1077(b)(6).  
¶ 34.        
More significantly, the decision to move forward in Vermont created an
immediate obstacle to the goal of reunification—an obstacle the parents no
doubt continue to face as this case has moved from merits to disposition. 
See 33 V.S.A. § 5101(a)(3) (stating that one purpose of juvenile judicial
proceedings is to “preserve the family and to separate a child from his or her
parents only when necessary to protect the child from serious harm or in the
interests of public safety”).  Given the limitations of time, as well as financial
and transportation limitations, parents’ ability to travel to Vermont with the
frequency necessary to build their relationship with their child is
tenuous.  They are no doubt expected to successfully engage in a host of
services designed to address the issues that gave rise to this petition in the
first place.  The tasks associated with that critical personal work,
combined with travel to and from Vermont to spend time with their child, could
take up all their time and effort, leaving little capacity for employment, and
steep barriers to success.  That is not a recipe for smooth
reunification.  
¶ 35.        
I realize that the prospect of dismissing a CHINS petition, in the face
of allegations that a child’s welfare is at risk with his or her parents, may
seem untenable.  But I have confidence that Vermont is not the only state
with attentive and concerned child protection professionals ready to take
necessary steps to protect a child’s well being.  In fact, in this case
the record reflects that New York’s Department of Social Services (DSS)—New
York’s DCF analog—was well aware of this family.  Although the record does
not provide definitive evidence on this point, it appears that the reason the
New York authorities discontinued their own engagement with this case was that
Vermont had assumed jurisdiction. 
¶ 36.        
Moreover, had the trial court decided to decline to exercise its
jurisdiction, it could have ensured an orderly transfer by setting a date
certain for its dismissal that left sufficient time for New York authorities to
initiate a proceeding in that state and secure an interim order of some sort if
they so desired.  The trial court tried to do this at one point, ordering
defendants to take action to transfer the case to New York and indicating that
Vermont would maintain jurisdiction until that occurred.  In the absence
of a date certain for dismissal of the case, and given Vermont’s continued
retention of jurisdiction, it is disappointing but not surprising that New
York’s DSS apparently declined to initiate a proceeding in New York.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1]
 Mother testified that her three older children all live with their
fathers.  
 


[2]
 The date of dismissal of the relief-from-abuse petition is not evident
from the record.  While this appeal was pending, mother filed a request to
supplement the appellate record, or alternatively to take judicial notice of
certain additional documents relating to the New York proceeding, including:
(1) a motion filed by mother in the New York family court, dated October 1,
2012, seeking custody of the child; (2) a supplemental affidavit by mother
seeking “emergency custody”; and (3) a New York family court order of the same
date directing the New York child-protective services agency “to conduct a
child protective investigation.”  The State has opposed mother’s motion,
observing that the records were not brought to the trial court’s attention in
the proceedings below, and asserting that they do not affect the outcome in any
event.  While a Vermont family court is obligated to stay a proceeding and
communicate with the court of another state if “information supplied by the
parties” indicates that a child custody proceeding has been commenced in the
court of another state having jurisdiction, 15 V.S.A. § 1076(b), that did
not occur here; mother did not disclose that she had commenced such a
proceeding, and the State was apparently unaware of any proceeding other than
mother’s petition for relief from abuse, which she testified had been
voluntarily dismissed prior to the CHINS proceeding.  Accordingly, we agree
that the records in question do not affect our conclusion, discussed infra,
that neither Vermont nor New York was the child’s “home state” under 15 V.S.A.
§ 1071, and that Vermont has sufficient connections with the child to exercise
jurisdiction.  Therefore, we need not address the motion.
         


[3] 
Although mother and father have filed separate briefs, with one exception all
of the principal claims are set forth in mother’s brief, which father has
joined.
 


[4] 
The UCCJEA was enacted effective July 1, 2011.  15 V.S.A. § 1096.  On
the same date, the UCCJA was repealed.  2011, No. 29, § 8.



