In re M.S., 17–095

• Citation: 176 A.3d 1124
• Decision Date: 01 September 2017
• Docket Number: No. 17–095,17–095
• Court: Vermont Supreme Court
• Parties: IN RE M.S., Juvenile

176 A.3d 1124

IN RE M.S., Juvenile

No. 17–095

Supreme Court of Vermont.

June Term, 2017

September 1, 2017

Matthew Valerio, Defender General, and Katina Francis Ready, Appellate Defender, Montpelier, for Appellant Father.

Adele V. Pastor, Barnard, for Appellant Mother.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody Racht, Assistant Attorney General, Waterbury for Appellee.

Michael Rose, St. Albans, for Appellee Juvenile.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J., Specially Assigned

EATON, J.

¶ 1. Mother and father separately appeal the family court's order terminating their parental rights to their son, M.S., born on January 12, 2015. On appeal, both parents argue that the court did not have jurisdiction. In addition, father argues that the court erred in (1) not immediately ordering genetic testing of father and proceeding with the merits hearing without his participation, and (2) at disposition, admitting New Hampshire orders terminating parents' rights to two older children. We affirm.

¶ 2. M.S. is parents' fourth child. He was born at a hospital in New Hampshire. The day of his birth, the State of Vermont filed a petition alleging M.S. was a child in need of care or supervision (CHINS) and seeking an emergency care order based on allegations that mother failed to get adequate prenatal care, parents' two oldest children, daughters, were in custody in New Hampshire due to parental neglect, and parents' next youngest child, a son, was in the custody of the Vermont Department for Children and Families (DCF) based on serious and unexplained physical injuries. The court issued an emergency care order on January 13, 2015, placing M.S. in DCF custody. On January 14, 2015, mother filed a motion to dismiss, arguing that Vermont lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 15 V.S.A. §§ 1061 – 1096. At a hearing on January 14, 2015, the court noted that it was authorized by the UCCJEA to issue an emergency order to protect the child, but set the matter for a contested hearing to resolve the jurisdictional issue. The court held an evidentiary hearing over two days in February and March 2015. In April 2015, the court issued a written order, concluding that the child did not have a home state and that Vermont could properly exercise jurisdiction due to its connections to the child and parents.

¶ 3. Although father was named in the CHINS petition, he was not definitively identified until genetic testing was complete and a parentage order was issued in June 2015. M.S. was placed in the same foster home as his older brother. He was adjudicated CHINS in August 2015. The initial case plan included recommendations for both parents, including obtaining substance-abuse and mental-health treatment, obtaining safe housing, obtaining domestic-violence counseling, attending visits, and engaging in parenting coaching. DCF sought termination at the initial disposition. Following a hearing, the court concluded that parents had made no progress, parents would not be able to parent in a reasonable period of time, and termination was in the child's best interests.

¶ 4. Parents separately filed notices of appeal. On appeal, neither parent challenges the court's assessment of the child's best interests.

I. Jurisdiction Under the UCCJEA

¶ 5. We begin with mother's argument, which father joins, that under the UCCJEA Vermont lacked jurisdiction. The question of jurisdiction is a legal one that we review de novo. In re A.W., 2014 VT 32, ¶ 17, 196 Vt. 228, 94 A.3d 1161. We review the factual findings underlying the jurisdictional decision for clear error. Id.

¶ 6. The UCCJEA defines the circumstances in which Vermont has jurisdiction to make an initial child custody decision. Id. ¶ 14. The primary basis for exercising jurisdiction is when Vermont is the home state of the child at the time the proceeding is commenced. 15 V.S.A. § 1071(a)(1). Among other possibilities, Vermont may also exercise jurisdiction if the child is without a home state and the child and at least one parent have "a significant connection with Vermont" and "substantial evidence is available in Vermont concerning the child's care, protection, training, and personal relationships." Id. § 1071(a)(2).

¶ 7. Here, the trial court concluded that the child did not have a home state and that Vermont could exercise jurisdiction based on the connections to and evidence in Vermont. Mother argues that (1) the court's conclusion regarding home state was incorrect and that New Hampshire is the child's home state, and (2) Vermont lacks the necessary significant connection to exercise jurisdiction on that basis.

A. Home State Jurisdiction

¶ 8. The trial court made the following relevant findings. Mother was essentially homeless for several months in 2014, living at various times with relatives or friends in Vermont and New Hampshire. While pregnant with M.S., she was admitted to a hospital in New Hampshire in November 2014. She provided a social worker there with a Vermont address for purposes of applying for assistance. In December 2014, mother was discharged and stayed with her grandparents and then other relatives in New Hampshire before M.S.'s birth in January 2015 at a hospital in New Hampshire. On the day of M.S.'s birth, the CHINS petition was filed in Vermont.

¶ 9. On appeal, mother argues that New Hampshire was M.S.'s home state and that New Hampshire therefore had jurisdiction over this proceeding. Mother emphasizes her connections to New Hampshire, including the various relatives she has in that state and the time she spent in New Hampshire prior to M.S.'s birth. She argues that she was not homeless prior to M.S.'s birth, but had established a legal residence in New Hampshire by staying in New Hampshire, obtaining a New Hampshire identification card, and intending to remain in New Hampshire after the child's birth. She contends that her connections to New Hampshire along with the child's birth in New Hampshire are sufficient to confer home-state jurisdiction.

¶ 10. The UCCJEA prioritizes jurisdiction based on the home state of the child in initial custody determinations. Ward v. LaRue, 2016 VT 81, ¶ 17, 202 Vt. 499, 150 A.3d 631. Under the UCCJEA, home state is defined as the state in which the child lived with a parent or person acting as a parent "for at least six consecutive months immediately" preceding the child custody proceeding, or for children under six months, "the state in which the child lived from birth" with a parent. 15 V.S.A. § 1061(7). Because the CHINS petition in this case was filed the day of M.S.'s birth, the question is whether M.S. "lived from birth" with a parent in a state such that that state was his home state. In construing this provision, we apply familiar rules of statutory construction and look first to the plain language of the statute. In re A.W., 2013 VT 107, ¶ 5, 195 Vt. 226, 87 A.3d 508. To resolve any ambiguity, we look at the statute as a whole and consider the statute's subject matter, effects, and consequences. Id.

¶ 11. Mother asserts that her legal residence, her intent regarding where she would live after M.S.'s birth, and the facts about where she resided for the six months prior to M.S.'s birth are relevant to the home-state analysis. The statutory language defines home state as the state where the child "lived from birth." 15 V.S.A. § 1061(7). Two conclusions flow from the use of this language. First, the focus is on where the child was since birth. Where mother resided prior to M.S.'s birth is not relevant to determining M.S.'s home state.

¶ 12. Second, the word "lived" is different from resided or domiciled, and we conclude that the Legislature used the word "lived" in the statute purposefully. See McMurphy v. State, 171 Vt. 9, 12, 757 A.2d 1043, 1046 (2000) ("We presume that language is inserted advisedly and that the Legislature did not intend to create surplusage."). As the Supreme Court of Texas explained, "[t]he word ‘lived’ strongly connotes physical presence" and "it [is] significant that the Legislature chose the word ‘lived’ as opposed to ‘resided’ or ‘was domiciled.’ " Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005). Determining residence or domicile includes an inquiry into intent and using "live" avoids the complication of determining a child's home state " ‘with inquiries into the states of mind of the child or the child's adult caretakers.’ " Id. (quoting Escobar v. Reisinger, 133 N.M. 487, 64 P.3d 514, 517 (App.2003) ); see Slay v. Calhoun, 332 Ga.App. 335, 772 S.E.2d 425, 429–30 (2015) (concluding that language "lived" in definition of home state refers to state where child is physically present, not state of legal residence); In re Marriage of Miller & Sumpter, 196 S.W.3d 683, 691 (Mo. Ct. App. 2006) (construing similar language of UCCJA and observing that appellate courts have concluded that language "lived" means "state of the child's actual physical presence, rather than the state of the child's legal residence or domicile"), abrogated on other grounds as recognized in Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. 2010) (en banc). Using a more objective analysis furthers the purpose of the UCCJEA to make the initial jurisdictional decision a more straightforward determination. See Ward, 2016 VT 81, ¶ 17, 150 A.3d 631 (explaining that one aim of UCCJEA was to clarify that home state jurisdiction analysis should take primacy to make initial jurisdictional analysis more straightforward).

¶ 13. We join several other states in holding that it is the child's physical presence—not a parent or child's residence, domicile or subjective intent—that is relevant to determining a child's home state.¹ See, e.g., Ocegueda v. Perreira, 232 Cal.App.4th 1079, 181 Cal.Rptr.3d 845, 852–53 (2015) (holding that parent's subjective intent to remain in state is irrelevant to determining where child "lives" for home-state analysis); Calhoun, ...