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In re A.W.

Supreme Court of Vermont

April 11, 2014

In re A.W., Juvenile

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Franklin Unit, Family Division. James R. Crucitti, J. (Emergency Care Order); Geoffrey W. Crawford, J. (CHINS Decision).

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


Page 1162

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

Page 1163

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 Plattsburg. 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]

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[¶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 ...

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