2017 VT 80
Vt. Super. Ct.2017Background
- M.S. born Jan 12, 2015 in a New Hampshire hospital; Vermont filed a CHINS petition and emergency care order the day after birth and DCF took custody.
- Mother had an unstable housing history across VT and NH in months before birth; parents had three prior children and there were open/state proceedings concerning older children (one child in VT DCF custody after serious unexplained injuries).
- Father was named in the original petition but not established as a legal parent until court-ordered genetic testing and a parentage order in June 2015; he missed early voluntary testing appointments and did not participate in the first day of the merits hearing.
- After evidentiary hearings, the family court found no home state for M.S., exercised jurisdiction under the UCCJEA based on significant connections/substantial evidence in Vermont, adjudicated M.S. CHINS, and ultimately terminated both parents’ rights; parents appealed only jurisdictional and certain procedural evidentiary issues (father additionally challenged genetic-testing timing and admission of NH termination orders).
- The Vermont Supreme Court affirmed: (1) child had no home state at commencement; (2) Vermont properly exercised significant-connection jurisdiction; (3) father’s late identification and absence did not prejudice the CHINS adjudication; (4) admission of NH termination orders posed no preserved error and the court did not rely on their substantive findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vermont had home-state jurisdiction under the UCCJEA | Mother: New Hampshire was home state because child was born there and mother had NH ties/residence | State/Vermont: "lived from birth with a parent" requires more than a brief hospital stay; mother’s pre-birth residence not dispositive | Held: M.S. had no home state when petition filed; hospital birth alone insufficient to confer NH home-state status and M.S. had not lived in VT from birth |
| Whether Vermont could exercise significant-connection jurisdiction | Mother: NH had greater connections/substantial evidence; Vermont lacked required ties | State: Vermont had significant connections (parents’ long ties, prior VT DCF cases, evidence re: older sibling in VT) and substantial evidence in VT | Held: Vermont properly exercised §1071(a)(2) jurisdiction — sufficient significant connection and substantial evidence in VT |
| Whether court abused discretion by not contacting NH before asserting jurisdiction | Mother: court should have communicated with NH under UCCJEA §1068 | State: §1068 is permissive ("may"); no active NH proceeding existed to create conflict | Held: No abuse — communication not mandatory and no pending NH proceeding required deferment |
| Whether father’s late genetic testing and absence at merits violated due process or required reversal | Father: DCF should have ordered testing earlier; proceeding without him prejudiced his rights | State: CHINS focuses on child welfare; hearings need not be delayed; father later identified and could challenge disposition evidence | Held: Court erred in not ordering testing earlier but any error was harmless — father failed to show prejudice; due process claims not shown to require reversal; disposition protections preserved father’s interests |
| Whether court erred in admitting/taking judicial notice of NH termination orders re: older children | Father: Court could take notice of existence but not rely on substantive findings | State: Orders were offered as exhibits and father’s counsel agreed they were admissible | Held: No preserved error; court admitted the orders and did not rely on their substantive findings for its conclusions |
Key Cases Cited
- In re D.S., 840 N.E.2d 1216 (Ill. 2005) (temporary hospital stay incident to birth does not by itself make that state the newborn’s home state)
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) ("lived" in UCCJEA connotes physical presence; intent alone is insufficient)
- In re D.T., 743 A.2d 1077 (Vt. 1999) (home-state analysis focuses on child’s presence; prior case law on home-state jurisdiction)
- Carl v. Tirado, 945 A.2d 1208 (D.C. 2008) (newborn transported days after birth may have no home state under analogous provisions)