In re BC

Decision Date08 January 1999
Docket NumberNo. 98-341.,98-341.
Citation726 A.2d 45
PartiesIn re B.C.
CourtVermont Supreme Court

Michael Rose, St. Albans, for appellant Custodial Guardian.

Charles S. Martin of Martin & Associates, Barre, for appellant Mother.

William H. Sorrell, Attorney General, Montpelier, and Jody A. Racht and Martha E. Csala, Assistant Attorneys General, Waterbury, for appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Mother and grandmother of four-year-old B.C. appeal the family court's order terminating their parental rights. They argue that the family court lacked jurisdiction over the neglect and termination proceedings, and that the court's findings do not support the termination order. We affirm, concluding that the family court had jurisdiction to render the termination order, and that the court's findings support the order.

Mother was seventeen years old and a resident of Massachusetts when B.C. was born on January 22, 1994. During the fall of 1995, the Massachusetts Department of Social Services (DSS) became involved with the family after it became apparent that B.C. was a "failure-to-thrive" baby. Evaluations revealed that at age twenty-two months B.C weighed only twenty-one pounds, placing him in the fifth percentile for children that age. Mother's chaotic life, her inability to interact favorably with the child, and caloric deprivation were identified as the causes of the child's condition. B.C.'s condition initially improved but then regressed by the spring of 1996, at which time mother was homeless and caring for her new baby, who was born in the fall of 1995. On May 23, 1996, in a Massachusetts probate court proceeding, mother voluntarily relinquished guardianship of B.C. to her mother, who had been living in Vermont.

In July 1996, approximately six weeks after being appointed as B.C.'s guardian, grandmother returned to Vermont with the child. In the ensuing two months, B.C. and grandmother lived either in her car or in one of several residences in the St. Alban's area. One day in early September, grandmother left B.C. with two girls she knew and then failed to pick the child up later that day as planned. The next day the former foster mother of one of the girls called the Department of Social and Rehabilitation Services (SRS), and an emergency petition was filed alleging that B.C. was a child in need of care or supervision (CHINS). Although B.C. was nearly three years old at that time, the foster mother reported that he did not seem to be familiar with solid food. Apparently, his primary source of nourishment had been a nutritional supplement. The child's teeth were seriously decayed, and an examining physician concurred with the prior failure-to-thrive diagnosis.

B.C. remained with the foster mother. In November 1996, the Franklin Family Court found B.C. to be a child in need of care or supervision. Mother came to Vermont that same month to attend a court hearing and express her desire to have B.C. returned to her in Massachusetts. In December 1996, SRS requested that DSS perform a home study to assess whether and under what circumstances B.C. could be safely returned to his mother in Massachusetts. Following the disposition hearing held in January and February 1997, the family court placed B.C. in SRS custody and adopted SRS's plan to reunify B.C. with his mother or grandmother conditioned upon completion of a number of services.

After the Massachusetts home study was completed in April 1997, DSS refused to recommend placement of B.C. with mother because she was living with her father, who was on the Massachusetts registry for having physically and sexually abused her when she was a child. Based on mother's refusal to leave her father's home and come to Vermont, and her failure to follow through with visitations and case plan services, SRS filed a supplemental disposition report in May 1997 recommending termination of parental rights (TPR).

Mother moved to Vermont in June 1997, the same month that SRS filed its petition to terminate her parental rights. SRS offered mother services designed to allow her to develop a relationship with B.C., and arranged liberal visitation between her and B.C., but she refused the services and did not regularly take advantage of opportunities to visit B.C. In March 1998, after the family court rejected SRS's argument that the court's disposition order had terminated grandmother's status as guardian of B.C., SRS filed a petition to terminate grandmother's parental rights. Grandmother responded by filing a motion to dismiss for lack of jurisdiction. Mother joined the motion, and the court denied it. Following three days of hearings held in March and April 1998, the court terminated mother's and grandmother's parental rights. The court also terminated the residual parental rights of the biological father, whose where-abouts were unknown and who did not participate in the proceedings.

I.

We first examine appellants' challenge to the family court's jurisdiction. The parties acknowledge that CHINS and TPR proceedings are subject to the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051. See In re A.L.H., 160 Vt. 410, 413, 630 A.2d 1288, 1290 (1993) (citing 15 V.S.A. § 1031(3), which provides that term "custody proceeding" includes child neglect and dependency proceedings). Under relevant sections of the UCCJA, a competent Vermont court has jurisdiction to make or modify child custody determinations if (1) at the time of the commencement of the proceeding the child involved had been living in Vermont for six consecutive months with a parent or a person acting as a parent; or (2) it is in the child's best interest for a Vermont court to assume jurisdiction because the child and at least one other contestant have a significant connection to Vermont, and substantial evidence concerning the child is available in Vermont; or (3) the child is physically present in Vermont and needs emergency protection because of abandonment, abuse or neglect; or (4) no other state has jurisdiction under the above criteria, or another state has declined to exercise its jurisdiction, and it is the child's best interest for a Vermont court to assume jurisdiction. See 15 V.S.A. § 1032(a). The UCCJA also provides that a Vermont court may not modify the custody order of another state court unless the Vermont court has jurisdiction, and it appears to the Vermont court that the other state court either no longer has jurisdiction under the UCCJA criteria or has declined jurisdiction. See id. § 1042(a).

For the following reasons, appellants argue that none of the above UCCJA provisions permitted the family court to exercise jurisdiction over the present matter. First, because B.C. had been in Vermont for only two months when SRS filed the CHINS petition, Vermont was not his "home state" at the time of the commencement of the child neglect proceedings that culminated in the termination order. Second, because Massachusetts was the child's home state when the CHINS petition was filed, Vermont could not assume jurisdiction under the UCCJA's "best interest" alternative, which is superseded by the home state preference of the Parental Kidnapping and Prevention Act (PKPA). See 28 U.S.C. § 1738A(c)(2)(B); Shute v. Shute, 158 Vt. 242, 247, 607 A.2d 890, 893 (1992). Moreover, appellants argue, even if the PKPA does not preempt the UCCJA in this case, see A.L.H., 160 Vt. at 413 n. 2,630 A.2d at 1290 n. 2 (courts are divided on whether PKPA applies to neglect and dependency proceedings), neither the evidence nor the court's findings support any claim that B.C. had a substantial connection to Vermont at the time the CHINS proceeding commenced or that substantial evidence concerning B.C. was available in Vermont. Third, while appellants concede that the family court may have had jurisdiction to issue temporary orders to protect B.C. under the UCCJA's emergency alternative, they contend that any assumption of jurisdiction under this provision did not authorize the court to make permanent custody determinations. See id. at 415, 630 A.2d at 1291. Finally, they assert that the Massachusetts probate court never declined to exercise its continuing jurisdiction over a matter in which it had previously issued a custody determination.

Based on these arguments, appellants ask this Court to vacate the CHINS, disposition, and termination orders even though they did not challenge the family court's exercise of jurisdiction until eighteen months after SRS filed the CHINS petition and placed B.C. in his current foster home, thirteen months after the court issued its initial disposition order, and nearly ten months after SRS filed its petition to terminate mother's parental rights. Not surprisingly, the law does not support their belated challenge to the court's jurisdiction.

Appellants' arguments erroneously focus on the family court's exercise of jurisdiction during the CHINS and disposition proceedings. They fail to acknowledge that Vermont was B.C.'s home state at the time of the commencement of the TPR proceeding, the proceeding that is the subject of this appeal. Unless termination of parental rights is sought at the initial disposition hearing, a TPR petition commences a new proceeding to modify the previous disposition order based on changed circumstances. See 33 V.S.A. § 5532(a). "For purposes of the UCCJA, a `proceeding' commences with the filing of a new petition for custody or modification of a custody determination." Matthews v. Riley, 162 Vt. 401, 406 n. 4, 649 A.2d 231, 235 n. 4 (1994); see Columb v. Columb, 161 Vt. 103, 112, 633 A.2d 689, 694 (1993) (by erroneously focusing on date of original divorce filing, trial court failed to consider date of renewed motion to modify as time of commencement of proceeding for purposes of UCCJA and PKPA). As we stated in Columb:

If a child moves from place to place, ... the proper forum to determine custody will change as
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