In re M.S.
176 A.3d 1124
| Vt. | 2017Background
- M.S., born January 12, 2015 in a New Hampshire hospital, was the fourth child of parents with a history of child-welfare involvement; Vermont DCF filed a CHINS petition and emergency care order the day of birth and placed M.S. in DCF custody.
- Mother was effectively homeless in the months before birth, living intermittently in Vermont and New Hampshire; father had longstanding ties to Vermont but was not conclusively identified as M.S.’s biological father until genetic testing and a parentage order in June 2015.
- The family court held an evidentiary hearing and found M.S. had no home state; it exercised jurisdiction under the UCCJEA’s "significant connection" ground and later adjudicated M.S. CHINS and terminated parental rights.
- Mother (joined by father on jurisdiction) argued Vermont lacked UCCJEA jurisdiction; father separately challenged (1) delay in genetic testing and his absence during part of the merits hearing, and (2) admission of New Hampshire termination orders concerning older children.
- The court affirmed jurisdiction under the UCCJEA (significant connection), found the failure to order immediate genetic testing was error but harmless (no prejudice shown), and held admission/use of New Hampshire orders was not reversible error.
Issues
| Issue | Plaintiff's Argument (Mother/Father) | Defendant's Argument (State/DCF) | Held |
|---|---|---|---|
| Whether Vermont had "home state" jurisdiction under UCCJEA | Mother: New Hampshire was M.S.'s home state because he was born there and mother had ties/residence there | State: Child had not "lived from birth" with a parent in NH; brief hospital stay is not enough to confer home-state | Held: No home state existed—brief hospital presence alone does not equal "lived from birth with" a parent; Vermont was not home state either because M.S. had not lived in VT since birth |
| Whether Vermont could exercise UCCJEA significant-connection jurisdiction | Mother: New Hampshire had at least equal or greater connections and evidence | State: Vermont had substantial connections and evidence (parents’ history in VT; prior DCF involvement and related proceedings in VT) | Held: Vermont could exercise jurisdiction under 15 V.S.A. §1071(a)(2); sufficient connections and substantial evidence in Vermont |
| Whether court abused discretion by not communicating with New Hampshire before exercising jurisdiction | Mother: Court should have contacted NH under UCCJEA §1068 | State: Communication is permissive ("may"), and no conflicting NH proceeding existed | Held: No abuse — communication permissive and no pending NH case to resolve |
| Whether delay in genetic testing and father’s absence at first merits hearing violated father’s rights | Father: DCF should have ordered testing earlier; proceeding in his absence denied due process | State: Father was named but left when court said paternity unresolved; testing later ordered and father participated subsequently; no prejudice shown | Held: Court erred in not ordering testing earlier, but error harmless—father failed to show prejudice and had opportunity to contest evidence at disposition |
| Whether court erred in admitting New Hampshire termination orders or relying on their findings | Father: Court could note the existence of NH orders but not rely on their substantive findings | State: Offered NH orders as exhibits; father’s counsel agreed they were admissible | Held: No reversible error — orders were admitted (not judicially noticed) and court did not rely on their substantive findings; father did not preserve a contrary objection |
Key Cases Cited
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) ("lived" connotes physical presence; inquiry should avoid parents’ subjective intent)
- Ocegueda v. Perreira, 232 Cal.App.4th 1079 (Cal. Ct. App. 2015) (child’s physical presence is central to home-state analysis)
- In re D.S., 217 Ill.2d 306 (Ill. 2005) (temporary hospital stay incident to delivery alone insufficient to confer home-state jurisdiction; look to parents’ connections)
- In re R.L., 4 Cal.App.5th 125 (Cal. Ct. App. 2016) (hospital birth alone does not establish home state where mother did not live in that state before birth)
- Carl v. Tirado, 945 A.2d 1208 (D.C. 2008) (strict application of "lived from birth" can leave a newborn without a home state)