W.H. v. Dep't for Children & Families
| Citation | 2020 VT 104 |
| Decision Date | 20 November 2020 |
| Docket Number | No. 2020-055,2020-055 |
| Court | United States State Supreme Court of Vermont |
| Parties | W.H. v. Department for Children and Families |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Windham Unit, Family Division
Sarah Star of Sarah R. Star, P.C., Middlebury, for Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton and Cohen, JJ., and Howard, Supr. J. (Ret.), Specially Assigned
¶ 1. This case presents the question of whether Vermont must recognize and register an Alabama order granting plaintiff father, W.H., sole physical and legal custody of juvenile M.P., who currently resides in Vermont and is in the custody of the Vermont Department for Children and Families (DCF) pursuant to a Vermont court order. The family division concluded that Alabama lacked jurisdiction to adjudicate matters related to M.P.'s custody and denied the registration request. On appeal, plaintiff contends that Alabama had jurisdiction under the applicable state and federal laws and that Vermont was therefore obligated to recognize and register the Alabama custody order. We affirm.
¶ 2. The jurisdictional and enforcement issues in this appeal involve the standards established by, and the interaction between, two legislative enactments. The first is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 15 V.S.A. §§ 1061-1096, which is a uniform law enacted to "avoid a jurisdictional contest between states" regarding child-custody matters. Pierce v. Slate, 2017 VT 63, ¶ 13, 205 Vt. 159, 172 A.3d 190. It has been adopted by forty-nine states plus the District of Columbia and the Virgin Islands. UCCJEA References & Annot., Editor's notes, U.L.A. The exercise of jurisdiction by Vermont under the UCCJEA is based primarily on home-state jurisdiction, defined broadly as the state where the child has lived with a parent for six months. In re M.S., 2017 VT 80, ¶ 6, 205 Vt. 429, 176 A.3d 1124; see 15 V.S.A. § 1071(a)(1). The UCCJEA also, however, allows Vermont to exercise temporary emergency jurisdiction if a child is present in Vermont and is abandoned or needs protection. 15 V.S.A. § 1074(a). If emergency jurisdiction is exercised and no child-custody determination is commenced in a state having jurisdiction, the child-custody determination becomes final and Vermont becomes the child's home state. Id. § 1074(b).
¶ 3. The other important legislation is a federal law entitled the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A, which requires state courts to give full faith and credit to the custody determinations of other states. The PKPA was enacted in response to children being kidnapped by parents and brought across state lines, and its purpose "was to provide for nationwide enforcement of custody orders." Thompson v. Thompson, 484 U.S. 174, 181 (1988). The PKPA was designed to address the interstate custody jurisdictional problems that continued to exist after the adoption of the precursor to the UCCJEA, the Uniform Child Custody Jurisdiction Act (UCCJA). UCCJEA References & Annot., Prefatory Note, U.L.A. Like the UCCJEA, the PKPA prioritizes home-state jurisdiction and allows a court to exercise continuing jurisdiction. 28 U.S.C. § 1738A(c)(2). Under the continuing-jurisdiction provision, if a state makes an initial custodydetermination, that state maintains its jurisdiction as long as it is not extinguished, and the child continues to reside in the state. Id. § 1738A(d). The PKPA also provides that once a state has asserted lawful jurisdiction and a proceeding is pending, another state may not exert jurisdiction, even if it could have exercised jurisdiction in the first place. Id. § 1738A(g); Thompson, 484 U.S at 177.
¶ 4. The adoption of the UCCJEA was intended to remedy an "inconsistency of interpretation of the UCCJA and the technicalities of applying the PKPA, [which] resulted in a loss of uniformity among the States." UCCJEA, Refs & Annos, U.L.A. To that end, the UCCJEA's provisions were designed to harmonize with those of the PKPA by prioritizing home-state jurisdiction, clarifying the parameters for exercising emergency jurisdiction, providing for continuing and exclusive jurisdiction, specifying the types of proceedings covered, and distinguishing between jurisdictional standards and substantive standards.
¶ 5. In this case, there are competing custody determinations by Vermont and Alabama. The question is whether Vermont must recognize and enforce an Alabama custody order pertaining to M.P., which was made several years after Vermont had initiated a child-welfare proceeding involving M.P. Plaintiff argues that Vermont's orders did not comply with the UCCJEA or the PKPA, Alabama exercised jurisdiction in accordance with the PKPA and the UCCJEA, and therefore Vermont must enforce the Alabama custody order. We conclude that Vermont exercised jurisdiction in accordance with the UCCJEA and the PKPA, the Vermont custody proceedings were pending when the Alabama action was filed, and that Alabama was precluded from exerting jurisdiction. Therefore, Vermont was not required to recognize or enforce Alabama's order under either the UCCJEA or the PKPA.
¶ 6. The underlying facts of this case are set forth in detail in this Court's prior decision involving juvenile M.P. In re M.P., 2019 VT 69, ___ Vt. ___, 219 A.3d 1315. As described in thatcase, juvenile M.P. was born in October 2015 in Alabama to mother and her husband, who was named as M.P.'s father on M.P.'s birth certificate. Mother and her husband also had two older children together. In the spring of 2016, M.P. moved with her family to Vermont.1 Mother was subsequently arrested on an Alabama warrant and extradited back to Alabama, leaving M.P. and her older siblings in husband's care. In August 2016, husband requested state assistance in caring for the children and the court placed the children in DCF custody. In September 2016, when M.P. was almost one year old, DCF placed M.P. in a foster home in Vermont where she has lived since. In November 2016, based on the stipulation of husband as the custodial parent, the court found that M.P. and her siblings were children in need of care or supervision (CHINS).
¶ 7. The court issued a disposition order in January 2017 continuing DCF custody. The disposition case plan indicated that mother had named plaintiff in this case, W.H., as M.P.'s biological father. Following genetic testing, the court issued a proposed parentage order in June 2017 naming W.H. as M.P.'s legal parent. Plaintiff was then entered as a party in the CHINS case and granted representation by counsel. Plaintiff lived in Alabama and M.P. spent some time living with him and mother during the first few months of her life. Plaintiff did not know that mother was planning to take M.P. to Vermont. After the move to Vermont, plaintiff was unaware of the custody proceeding involving M.P. until a week after the emergency care order issued. Plaintiff attempted to communicate with DCF about M.P. but DCF would not provide him with information about the proceeding because he was not recognized as a legal parent and was not a party to the proceeding. See 33 V.S.A. § 5117(a) (). After he was entered as a party to the case, plaintiff traveled to Vermont a few times and had some visits with M.P. Plaintiff participated in the juvenileproceeding and did not challenge Vermont's exercise of jurisdiction or authority to issue the January 2017 disposition order.
¶ 8. In February 2018, the State filed petitions to terminate parents' rights. Following a hearing, the family division granted the petition as to both parents. As to plaintiff, the family division found that there was a change of circumstances based on his lack of progress, citing the minimal number of visits between him and M.P. and the resultant lack of a bond or relationship between them. In re M.P., 2019 VT 69, ¶ 11. The court issued an order in February 2019, finding that termination was in M.P.'s best interests, particularly because plaintiff would not be able to parent M.P. within a reasonable period of time as measured from M.P.'s perspective. Id.
¶ 9. In March 2019, parents appealed the termination decision to this Court on several grounds, including that the family division lacked jurisdiction over the CHINS proceeding under the UCCJEA. This argument was raised for the first time on appeal. Id. ¶ 18. On September 17, 2019, this Court concluded that Vermont had temporary emergency jurisdiction under the UCCJEA when the CHINS petition was filed because M.P. was present in the state and state intervention was required to protect M.P. from harm or risk of harm. Id. ¶ 20; see 15 V.S.A. § 1074(a) (). This Court further held that the emergency jurisdiction developed into permanent jurisdiction when no child-custody proceeding was commenced in a court of another state having jurisdiction for six months. In re M.P., 2019 VT 69, ¶¶ 21-22; see 15 V.S.A. § 1074(b). This Court held that at that point, Vermont became M.P.'s home state under the UCCJEA. In re M.P., 2019 VT 69, ¶ 21.
¶ 10. As to plaintiff's challenge to the termination order on the merits, this Court concluded that the family division erred in evaluating M.P.'s best interests because the family division inappropriately relied on plainti...
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