In re DT

• Decision Date: 29 October 1999
• Docket Number: No. 99-052.,99-052.
• Citation: 743 A.2d 1077
• Parties: In re D.T.
• Court: Vermont Supreme Court

743 A.2d 1077

In re D.T.

No. 99-052.

Supreme Court of Vermont.

October 29, 1999.

Motion for Reargument Denied November 22, 1999.

Michael Rose, St. Albans, for Appellant-Mother.

Charles Martin of Martin & Associates, Barre, for Appellant-Father.

William H. Sorrell, Attorney General, Montpelier, and Howard W. Stalnaker, Assistant Attorney General, Waterbury, for Appellee SRS.

Daniel Albert, Public Defender, St. Albans, for Appellee Juvenile.

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

SKOGLUND, J.

Mother appeals from a family court decision that held D.T. is a child in need of care and supervision (CHINS). She claims that the family court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) over the merits of the CHINS proceeding. She further claims that the court's determination that D.T. was a child in need of care or supervision was unsupported by the court's findings and that the findings of the court have no support in the record. Father joins in mother's appeal. Although we conclude that the trial court failed to make adequate findings in deciding the jurisdictional issue, we nonetheless affirm because the record contains sufficient evidence to support a finding of jurisdiction. We affirm the determination of CHINS as well.

When D.T. was ten weeks old, he was taken into protective custody by the Department of Social and Rehabilitation Services (SRS) after he was hospitalized for bronchial distress. At the detention hearing, both mother and father agreed to temporary custody with SRS. See 33 V.S.A. § 5502(a)(12)(B). Prior to the merits hearing, parents filed a motion to dismiss for lack of jurisdiction on the basis that Vermont was not the child's home state under the UCCJA. See 15 V.S.A. § 1032(a)(1). The State did not argue that Vermont was the home state; rather, it posited that the court had jurisdiction under 15 V.S.A. § 1032(a)(2), i.e., that it would be in the best interest of the child for a court in Vermont to assume jurisdiction based on the child's and the parents' significant connection with this state and because substantial evidence concerning the child's present or future care and protection was available here. For purposes of deciding the jurisdictional issue, the parents agreed that the court could consider the facts alleged in the affidavits submitted in the case, but reserved the right to contest certain allegations of abuse and neglect. They further stipulated that they were in Vermont temporarily, but had not decided to leave.

The affidavits informed the court of the following. D.T. was born prematurely on April 9, 1998, in Worcester, Massachusetts, weighing only 2.2 pounds. D.T. remained hospitalized on a ventilator for two months prior to his being released to the parents on June 9, 1998. Mother, father and child left directly from the hospital to Vermont where they had arranged to live temporarily with father's ex-wife. Based on a referral from the Massachusetts hospital, services had been prearranged for the family. On the evening of the family's arrival in Vermont (the four hour trip took the family eight and one-half hours to complete), the child was seen by a home health nurse. Home health nurses came daily to check D.T.'s condition, to give instruction to the parents on the specialized care D.T. required, including the need for a respiratory monitor and to reinforce previous training. The home health nurses determined that the baby lost two ounces in his first twenty-four hours out of the hospital. A healthy-baby coordinator also had daily contact with the parents and the child. On June 16, 1998, D.T. was hospitalized due to respiratory problems, and was then under the care of a physician. The affidavits noted that father's two children with his ex-wife had previously been taken into SRS custody in Vermont, and that his parental rights to these children were terminated by a Vermont court. No evidence was presented to the court concerning the parents' ties to Massachusetts, except for the undisputed fact that the child was hospitalized there for the first nine weeks of his life. One affidavit further alleged that mother has three other children that the State of New York took into custody in 1985.

On June 18, 1998, SRS took custody of D.T. and filed a CHINS petition. The court held a detention hearing the following day. The sole purpose of a detention hearing is to determine if continued detention is in the child's best interest and welfare. See 33 V.S.A. § 5515(a). The court continued detention, and the parents agreed to SRS's temporary custody of D.T. The child remained in the hospital. The parents were appointed counsel and filed a motion to dismiss for lack of jurisdiction in response to the State's CHINS petition, arguing only that Vermont was not D.T.'s "home state." On July 22, 1998, the court held a hearing, at which no evidence was taken. The court ruled from the bench based on the stipulated facts, concluding that it could exercise jurisdiction under either the significant-connections provision or the emergency provision of the UCCJA. See 15 V.S.A. § 1032(a)(2), (a)(3). SRS specifically requested that the court assert jurisdiction solely under the significant-connections provision of the UCCJA, but the court declined to do so. It found that the petition alleged an emergency situation and that there were sufficient contacts to exercise jurisdiction because: (1) the child was in the state and receiving medical treatment, (2) the parents were in the state, (3) the court was not informed of any proceeding pending in another state, (4) the court was not aware of any other state that would "have a better grasp" of the case (by which we assume the judge meant that no other state had more substantial evidence concerning the child's situation), and (5) no other state would be a more convenient forum.

A hearing on the merits of the CHINS petition was held on September 1 and November 10, 1998. On February 2, 1999, the court issued an order finding D.T. was CHINS. Following a motion on behalf of D.T. to correct judgment, the court amended the judgment to correct mother's name and to clarify that the findings were made by a preponderance of the evidence. Mother appeals. Father has joined mother's brief. D.T. has joined SRS's brief.

Mother argues that, under the UCCJA, the family court did not have jurisdiction to proceed to the merits of the CHINS proceeding. The UCCJA specifically includes neglect and dependency proceedings, such as CHINS proceedings, under the definition of "custody proceedings." See 15 V.S.A. § 1031(3). It provides four bases for jurisdiction to make a child custody determination. See In re A.L.H., 160 Vt. 410, 413, 630 A.2d 1288, 1290 (1993). Under the UCCJA, Vermont has jurisdiction if: (1) Vermont is the "home state" of the child, or (2) Vermont jurisdiction is in the child's best interest because the child and at least one contestant have significant connection to Vermont and there is substantial evidence in Vermont concerning the child's present or future care, or (3) the child is present in Vermont and needs emergency protection, or (4) no other state would have jurisdiction under (1), (2) or (3) or another state has declined jurisdiction because Vermont is a more appropriate forum to determine custody and it is in the best interest of the child to do so. See 15 V.S.A. § 1032(a).

SRS contends that Vermont may exercise jurisdiction under subsections (1), (2) or (3). Under subsection (1), the issue is whether Vermont was D.T.'s "home state" at the time of the commencement of the proceeding. See 15 V.S.A. § 1032(a)(1). "[I]n the case of a child less than six months old," the "home state" is "the state in which the child lived from birth" with "his parents, a parent, or a person acting as parent." 15 V.S.A. § 1031(5). Vermont is not D.T.'s "home state" because he did not live in Vermont "from birth." See In re Cifarelli, 158 Vt. 249, 253, 611 A.2d 394, 397 (1992) (Vermont is not "home state" of five-month-old child born in Bermuda, taken to New York for two weeks and then moved to Vermont because child did not live in Vermont "from birth" to commencement of proceeding); see also Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(b)(4) (1989) (defining "home state"). We need not decide whether Massachusetts would qualify as D.T.'s home state because, unlike PKPA, Vermont's UCCJA does not give preference to the "home state."¹ Under Vermont's UCCJA, there is no preference for one jurisdictional ground over another. See Shute v. Shute, 158 Vt. 242, 247, 607 A.2d 890, 893 (1992).

Under subsection (2), Vermont has jurisdiction if it is in the best interest of the child for Vermont to assume jurisdiction because the child and at least one contestant have significant connections to Vermont and there is substantial evidence concerning the child's present and future care in Vermont. See 15 V.S.A. § 1032(a)(2). At the time the court asserted jurisdiction in this case, the only facts before it were those alleged in the affidavit filed with the petition and the parties' stipulation that the parents and D.T. were temporarily living in Vermont and had not decided to leave. The court found that Vermont had sufficient contacts to exercise jurisdiction under this subsection because the child was in Vermont and receiving medical treatment, the parents were in Vermont, and the court was not aware of any proceeding pending in another state or of any other state that would "have a better grasp" of the situation or be a more convenient forum. We conclude that these findings are insufficient to support jurisdiction under subsection (2).

The court did have evidence before it from which it could determine that the child and at least one contestant had significant connections with this state and that substantial evidence concerning the child's present or future care, protection, and personal...