In re M.S.

176 A.3d 1124
Supreme Court of Vermont·Decided September 1, 2017·No. No. 17–095·Published·Cited by 11 cases

Opinions

EATON, J.

¶ 1. Mother and father separately appeal the family court's order terminating their parental rights to their son, M.S., born on January 12, 2015. On appeal, both parents argue that the court did not have jurisdiction. In addition, father argues that the court erred in (1) not immediately ordering genetic testing of father and proceeding with the merits hearing without his participation, and (2) at disposition, admitting New Hampshire orders terminating parents' rights to two older children. We affirm.

¶ 2. M.S. is parents' fourth child. He was born at a hospital in New Hampshire. The day of his birth, the State of Vermont filed a petition alleging M.S. was a child in need of care or supervision (CHINS) and seeking an emergency care order based on allegations that mother failed to get adequate prenatal care, parents' two oldest children, daughters, were in custody in New Hampshire due to parental neglect, and parents' next youngest child, a son, was in the custody of the Vermont Department for Children and Families (DCF) based on serious and unexplained physical injuries. The court issued an emergency care order on January 13, 2015, placing M.S. in DCF custody. On January 14, 2015, mother filed a motion to dismiss, arguing that Vermont lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 15 V.S.A. §§ 1061 - 1096. At a hearing on January 14, 2015, the court noted that it was authorized by the UCCJEA to issue an emergency order to protect the child, but set the matter for a contested hearing to resolve the jurisdictional issue. The court held an evidentiary hearing over two days in February and March 2015. In April 2015, the court issued a written order, concluding that the child did not have a home state and that Vermont could properly exercise jurisdiction due to its connections to the child and parents.

¶ 3. Although father was named in the CHINS petition, he was not definitively identified until genetic testing was complete and a parentage order was issued in June 2015. M.S. was placed in the same foster home as his older brother. He was *1129adjudicated CHINS in August 2015. The initial case plan included recommendations for both parents, including obtaining substance-abuse and mental-health treatment, obtaining safe housing, obtaining domestic-violence counseling, attending visits, and engaging in parenting coaching. DCF sought termination at the initial disposition. Following a hearing, the court concluded that parents had made no progress, parents would not be able to parent in a reasonable period of time, and termination was in the child's best interests.

¶ 4. Parents separately filed notices of appeal. On appeal, neither parent challenges the court's assessment of the child's best interests.

I. Jurisdiction Under the UCCJEA

¶ 5. We begin with mother's argument, which father joins, that under the UCCJEA Vermont lacked jurisdiction. The question of jurisdiction is a legal one that we review de novo. In re A.W., 2014 VT 32, ¶ 17, 196 Vt. 228, 94 A.3d 1161. We review the factual findings underlying the jurisdictional decision for clear error. Id.

¶ 6. The UCCJEA defines the circumstances in which Vermont has jurisdiction to make an initial child custody decision. Id. ¶ 14. The primary basis for exercising jurisdiction is when Vermont is the home state of the child at the time the proceeding is commenced. 15 V.S.A. § 1071(a)(1). Among other possibilities, Vermont may also exercise jurisdiction if the child is without a home state and the child and at least one parent have "a significant connection with Vermont" and "substantial evidence is available in Vermont concerning the child's care, protection, training, and personal relationships." Id. § 1071(a)(2).

¶ 7. Here, the trial court concluded that the child did not have a home state and that Vermont could exercise jurisdiction based on the connections to and evidence in Vermont. Mother argues that (1) the court's conclusion regarding home state was incorrect and that New Hampshire is the child's home state, and (2) Vermont lacks the necessary significant connection to exercise jurisdiction on that basis.

A. Home State Jurisdiction

¶ 8. The trial court made the following relevant findings. Mother was essentially homeless for several months in 2014, living at various times with relatives or friends in Vermont and New Hampshire. While pregnant with M.S., she was admitted to a hospital in New Hampshire in November 2014. She provided a social worker there with a Vermont address for purposes of applying for assistance. In December 2014, mother was discharged and stayed with her grandparents and then other relatives in New Hampshire before M.S.'s birth in January 2015 at a hospital in New Hampshire. On the day of M.S.'s birth, the CHINS petition was filed in Vermont.

¶ 9. On appeal, mother argues that New Hampshire was M.S.'s home state and that New Hampshire therefore had jurisdiction over this proceeding. Mother emphasizes her connections to New Hampshire, including the various relatives she has in that state and the time she spent in New Hampshire prior to M.S.'s birth. She argues that she was not homeless prior to M.S.'s birth, but had established a legal residence in New Hampshire by staying in New Hampshire, obtaining a New Hampshire identification card, and intending to remain in New Hampshire after the child's birth. She contends that her connections to New Hampshire along with the child's birth in New Hampshire are sufficient to confer home-state jurisdiction.

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In re M.S., 176 A.3d 1124 (Vt. 2017).

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