In re Z.H.
20-0377
| W. Va. | Jun 11, 2021Background
- Mother (Petitioner) resided in Virginia, used suboxone there during pregnancy, and returned to Virginia after delivering infant Z.H. in West Virginia.
- Z.H. was born in West Virginia and has never been physically present in Virginia; he has lived with his current foster family in West Virginia since November 2018.
- West Virginia initiated abuse-and-neglect proceedings and a circuit court terminated the petitioner’s parental rights to Z.H.
- The majority of the court concluded Virginia had “significant connection” jurisdiction under the UCCJEA § 48-20-201(a)(2), and therefore the WV circuit court’s termination order was void/enforceable issues followed from that finding.
- Justice Walker (dissent) argues the majority misreads § 201(a)(2)(A): the statute requires both the child and at least one parent to have a significant connection to a state other than mere parental contacts, and Z.H. lacks any personal connection to Virginia.
- Because no state qualifies under home-state or significant-connection provisions, the dissent contends West Virginia properly exercised default jurisdiction under UCCJEA § 201(a)(4).
Issues
| Issue | Majority's Position | Dissent's Position | Held (dissent) |
|---|---|---|---|
| Whether Virginia had “significant connection” jurisdiction under UCCJEA § 201(a)(2) | Virginia has significant connection jurisdiction because relevant connections and evidence exist in Virginia (through the parents) | A child’s connection cannot be established solely by parents’ contacts; Z.H. has no personal connection to Virginia | Virginia lacks significant-connection jurisdiction; West Virginia may exercise default jurisdiction |
| Whether a child’s significant-connection can be established solely via parents’ residence/contacts | Yes (majority treats parents’ ties as supplying the child’s connection) | No; statutory text requires the child and at least one parent to each have significant connections beyond mere parental presence | Parents’ contacts alone insufficient to establish the child’s connection |
| Whether availability of substantial evidence in a state is dispositive for jurisdiction | Substantial evidence in a state supports that state’s jurisdiction | Availability of evidence alone is insufficient to create the child’s significant connection | Substantial evidence is necessary but not alone determinative |
| Whether West Virginia could exercise “default” jurisdiction under § 201(a)(4) when no other state qualifies | Not reached/applicable if Virginia has jurisdiction | Where no home state or significant-connection state exists, default jurisdiction is available and appropriate | West Virginia has default jurisdiction to make an initial custody determination |
Key Cases Cited
- In re K.R., 735 S.E.2d 882 (W. Va. 2012) (discusses UCCJEA default-jurisdiction provision)
- In re D.S., 840 N.E.2d 1216 (Ill. 2005) (analyzes parent/child connections for UCCJEA significant-connection jurisdiction)
- In re M.S., 176 A.3d 1124 (Vt. 2017) (significant-connection analysis; court considered child’s and parents’ ties)
- In Int. of S.M.A., 555 S.W.3d 754 (Tex. App. 2018) (notes the inquiry is not which state has the most significant connection)
- In re E.T., 137 P.3d 1035 (Kan. App. 2006) (holds a newborn’s mother’s residence and pregnancy in a state did not alone establish the child’s significant connection)
- A.M. v. Houston County Dep’t of Human Res., 262 So.3d 1210 (Ala. Civ. App. 2017) (concludes child lacked significant connection to parents’ state despite parents’ residence and parental history there)
- Barabarawi v. Rayyan, 406 S.W.3d 767 (Tex. App. 2013) (supports principle that default jurisdiction is available when no other UCCJEA basis exists)