In re A.W.

• Decision Date: 11 April 2014
• Docket Number: No. 13–375.,13–375.
• Citation: 94 A.3d 1161,2014 VT 32
• Court: Vermont Supreme Court
• Parties: In re A.W., Juvenile.

94 A.3d 1161

2014 VT 32

In re A.W., Juvenile.

No. 13–375.

Supreme Court of Vermont.

April 11, 2014.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Appellant Mother.

Michael Rose, St. Albans, for Appellant Father.

William H. Sorrell, Attorney General, and Bridget C. Asay, Assistant Attorney General, Montpelier, and Jody Racht, Assistant Attorney General, Waterbury, for Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and BURGESS, J. (Ret.), Specially Assigned.

DOOLEY, J.

¶ 1. Mother and father appeal from a family court order adjudicating the minor A.W. to be a Child in Need of Care and Supervision (CHINS). They contend: (1) the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); and (2) the evidence did not support the trial court's finding that the child was without proper parental care. We affirm.

¶ 2. The rather tangled background to this dispute may be summarized as follows. Mother and father were married and living in Enosburg, Vermont in January 2012 when mother became pregnant with A.W. Mother had struggled with substance abuse and mental health issues, which continued during the pregnancy. Father had a history of alcohol abuse. Based on concerns from its earlier involvement with mother's older children,¹ the Department for Children and Families interviewed mother during her pregnancy and learned of her continued use of alcohol. In April 2012, the police responded to two incidents involving mother and father, one in which mother allegedly assaulted father because she thought he was drinking too much, and the other in which both mother and father were found intoxicated in a hotel in St. Albans, Vermont, resulting in a charge against father for disorderly conduct.

¶ 3. In June 2012, the parents moved to Plattsburgh, New York, although mother maintained her medical care in Vermont at Fletcher Allen Health Care (FAHC). A.W. was born at FAHC on September 17, 2012. DCF made a report that day to the New York child protection agency in Plattsburgh expressing its concerns about the parents' continued alcohol and possible drug abuse.

¶ 4. After two to three days in hospital at FAHC, mother was discharged with A.W., and the family went to father's parents' house in Swanton, Vermont before returning to their apartment in Plattsburgh. About a week after A.W.'s birth, on September 25, 2012, the New York police responded to a dispute between mother and father. This led to mother's hospitalization for in-patient psychiatric care at the Champlain Valley Physician's Hospital in Plattsburgh.

¶ 5. While mother was hospitalized, father took A.W. to live with his parents in Swanton. The New York child protection agency, in response, advised DCF that there was an open case involving the family and requested that DCF contact father in Vermont. Two DCF caseworkers visited father at his parents' house in early October 2012. Father told them that he could not remain sober while he was with mother, and that he planned to live with A.W. at his parents' house. Over the next few days, DCF officials met with father and established a safety plan for the child in which father agreed to engage in substance abuse services and to apply for benefits to help support himself and the child at his new residence. Father also filed a relief-from-abuse complaint against mother in Vermont, and was issued a temporary order. Mother was released from the hospital after a few days and filed her own relief-from-abuse petition in New York, but testified that she intentionally failed to appear at the scheduled hearing so that it would be dismissed.²

¶ 6. On October 5, 2012, DCF received information that father's substance abuse was continuing and filed a CHINS petition in response. A few days later, on October 8, 2012, mother and father appeared at the scheduled hearing on father's relief-from-abuse petition, where father had it dismissed. On the same day, the State filed a request for an emergency care order supported by a DCF social worker's affidavit stating that the child's grandfather in Swanton had reported that, following the relief-from-abuse hearing, the parents had returned home, picked up A.W., and left. The grandfather believed that they were returning to Plattsburgh. The grandfather stated that mother had behaved aggressively and that father may have been using drugs. The court, in response, issued an order finding that father had “stopped the safety plan that was necessary for the safety of the child,” and transferred temporary custody to DCF pending a hearing scheduled for the following day. The parents did not appear at the hearing, and the court issued an order noting that the parents' and the child's “whereabouts [were] unknown,” and that the State “suspects they have returned to New York.” The court directed DCF to “prepare a temporary care order which will allow DCF to take custody in either state.”

¶ 7. The child was taken into DCF custody the following day, October 10, 2012, in Vermont, where he was attending a medical appointment with mother. Following a hearing the next day, where both parents were represented, the court issued a temporary care order finding that the parents had been abusing drugs and alcohol, that returning custody to the parents would result in substantial danger to the health and safety of the child, and that temporary custody would remain with DCF. The child was placed with his paternal grandparents in Swanton, where he has since remained.

¶ 8. Shortly before the next scheduled hearing in December 2012, mother moved to dismiss the proceeding for lack of jurisdiction. Mother maintained that New York was the child's home state under the UCCJEA, and that there was no basis under the Act for an assertion of emergency jurisdiction in Vermont. In support of the motion, mother filed a letter from New York's child protection agency to mother, dated December 5, 2012, stating that she had been the subject of an investigation commenced on September 17, 2012, the date of A.W.'s birth, that some evidence had been uncovered to support a determination that the child had been maltreated or abused, and consequently that she would remain in the “New York State Child Abuse and Maltreatment Register” unless she requested an amendment or expungement. The State opposed the motion to dismiss, asserting that Vermont could exercise jurisdiction under the UCCJEA as either the child's home state, or on the basis that there was no home state, and Vermont had a significant connection with the family, or under the Act's provision for temporary emergency jurisdiction. The State subsequently filed a letter from New York's child protection agency, dated January 16, 2013, stating that its case concerning A.W. and his parents had been closed on November 14, 2012 because the child had been taken into DCF custody on October 10, 2012, and the child was residing with his paternal grandparents in Vermont. The State also filed a memorandum outlining the family's Vermont connections, including the fact that father had retained a Vermont driver's license and vehicle registration.

¶ 9. Following a hearing on the motion to dismiss in January 2013, the trial court issued a brief entry order, ruling that, while Vermont was not the child's home state, the court had properly exercised temporary emergency jurisdiction. The court also directed DCF to contact New York's child protection authorities to inquire about transferring the case, and set the matter for a further hearing “to monitor progress.” The State, in response, filed a memorandum asking the trial court, presumably pursuant to 15 V.S.A. § 1068, to contact the New York State Family Court to determine whether a transfer would be in the best interests of the child. The court did not do so.

¶ 10. At the next scheduled hearing in March 2013, the State reported that the child remained with his grandparents in Swanton, that the parents remained in New York, and that the matter had not been transferred to the New York child protection agency. Mother asserted that any emergency giving rise to the transfer of custody had passed, and requested that the case be dismissed and custody returned to the parents. The State countered that the chaos surrounding the child at birth validated the court's exercise of emergency jurisdiction, and that the circumstances justified retaining jurisdiction through to the merits hearing on the CHINS petition.

¶ 11. In response to these arguments, the court noted that there appeared to be no judicial proceeding in New York and no open case with the New York child protection agency, acknowledged the difficulties which the child's residence in Vermont posed for the parents, expressed the need for an “orderly transition” of custody to the parents, but ultimately remained reluctant to transfer custody or dismiss the case without more information about the parents' situation. The parties agreed to return at a follow-up hearing with more specific information regarding the parents' housing situation, employment, daycare arrangements, and the services in which they were enrolled.

¶ 12. At the next hearing in early April 2013, however, the court learned that father had since been incarcerated in New York on a domestic violence charge, that mother had moved from Plattsburgh to Norfolk, New York, that the extent of her participation in substance abuse and other services could not be verified, and that she had recently been a passenger in a vehicle which struck and killed a pedestrian. Mother restated her request for dismissal of the CHINS proceeding on jurisdictional grounds, while the State claimed that Vermont was the child's home state under the UCCJEA and that the matter should proceed to a merits hearing. The court declined to return custody to the parents, retained jurisdiction, and set the matter for a merits hearing.

¶ 13. The merits hearing was held...