Appeal from Superior Court, Windham Unit, Family Division
Katherine A. Hayes, J.
Matthew Valerio, Defender General, and Katina Francis Ready,
Appellate Defender, Montpelier, for Appellant Father.
V. Pastor, Barnard, for Appellant Mother.
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.
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.
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
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
10. The UCCJEA prioritizes jurisdiction based on the home
state of the child in initial custody determinations.
Ward v. LaRue, 2016 VT 81, ¶ 17, ___ Vt. ___,
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, 64 P.3d 514, 517
(Tex. 2003)); see Slay v. Calhoun, 772 S.E.2d 425,
429-30 (Ga.Ct.App. 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 (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. See, e.g., Ocegueda v.
Perreira, 181 Cal.Rptr.3d 845, 852-53 (Ct. App. 2015)
(holding that parent's subjective intent to remain in
state is irrelevant to determining where child
"lives" for home-state analysis); Calhoun,
772 S.E.2d at 429-30 (explaining that " 'home
state' is not synonymous with the residence or domicile
of the parent having legal custody" (quotation
omitted)); Dekinderen v. Dekinderen, No. 293443,
2010 WL 99269, at *3 (Mich. Ct. App. Jan. 12, 2010) (holding
that child's physical location is central factor to
determining home state, not residence or domicile);
Carter v. Carter, 758 N.W.2d 1, 9 (Neb. 2008)
(explaining that child's home state is separate from
parents' or child's legal residence); In re
Tieri, 283 S.W.3d 889, 893 (Tex. App. 2008) ("In
determining where a child lived for the purposes of
establishing home state jurisdiction, the trial court must
consider the child's physical presence in a state and
decline to determine where a child lived based on the
child's or the parents' intent."). This is
consistent with this Court's past cases, which have
focused on the child's presence in the state to determine
home state, and held that if the child has a home state, that
state has jurisdiction to make an initial decision regarding
custody regardless of the parents' connections to the
state. See In re D.T., 170 Vt. 148, 152, 743 A.2d
1077, 1080-81 (1999); see also In re R.W., 2011 VT
124, ¶ 31, 191 Vt. 108, 39 A.3d 682 (explaining that
child's home state has jurisdiction to adjudicate status
of child "even if the parents lack minimum contacts with
14. Therefore, to determine M.S.'s home state, we look to
where he was physically present since birth. He was born in
New Hampshire and remained in the hospital at the time the
petition was filed, but these facts alone do not make New
Hampshire M.S.'s home state. Although, as explained
above, "lived" as used in the statute connotes
physical presence, the statutory language defines home state
as more than just the place the child was present. The
statutory language is plain: the home state for a child under
six months is the place the child "lived from
birth" with a parent or person acting as a parent. 15
V.S.A. § 1061(7). We conclude that by adding the
requirement that the child live with a parent or person
acting as a parent, the Legislature meant "lived"
to mean more than simply being alive in the state. "When
people speak of where a mother and newborn baby 'live,
' they do not speak of the maternity ward, " but of
the place where the child and parents occupied a home. In
re D.S., 840 N.E.2d 1216, 1222 (Ill. 2005). We agree
with courts from other jurisdictions that a short hospital
stay incident to birth does not amount to "liv[ing] from
birth with" a parent and does not in itself confer home
state jurisdiction. See, e.g., In re R.L., 208
Cal.Rptr.3d 523, 533-34 (Ct. App. 2016) (holding that under
UCCJEA "a temporary hospital stay in a state incident to
birth, by itself, is insufficient to confer home state
jurisdiction"); In re D.S., 840 N.E.2d at 1222
("By itself, a temporary hospital stay incident to
delivery is simply insufficient to confer 'home
state' jurisdiction under the UCCJEA."); In re
Adoption of Baby Girl B., 867 P.2d 1074, 1079
(Kan.Ct.App. 1994) (explaining that statutory home state
"requirement that the child 'live with' the
mother from birth requires more than the mother and newborn
child staying at the same hospital for a brief period"),
superseded by statute, K.S.A. 59-2127, as
recognized in In re Adoption of H.C.H., 304 P.3d 1271,
1280 (Kan. 2013). Here, the petition was filed the day of
M.S.'s birth and we conclude that the short period of
time that M.S. was in the hospital in New Hampshire following
his birth did not confer home state jurisdiction.
15. We also conclude that Vermont was not M.S.'s home
state. Again, we begin with the statute's plain language,
which defines home state as the place where a child lived
from birth. As explained above, "lived" as used in
the statute means where the child is physically present and
is different from the parents' residence or domicile. See
In re Calderon-Garza, 81 S.W.3d 899, 901 (Tex. App.
2002) (holding that Texas was home state of child born there
and brought to Mexico day before proceeding commenced, even
though mother was resident and citizen of Mexico); B.B.
v. A.B., 916 N.Y.S.2d 920, 923-24 (Sup. Ct. 2011)
(holding that child's home state was Minnesota, where
child was born and continued to reside at time case was
filed, even though parties had lived in marital residence in
New York up until mother was seven-months pregnant). M.S. had
never been physically present in Vermont at the time the
petition was filed and therefore Vermont was not his home
state. See In re D.T., 170 Vt. at
152-53, 743 A.2d at 1080-81 (concluding under UCCJA, which
defined home state similarly, that Vermont was not home state
of ten-week old child born at hospital in Massachusetts and
then brought to Vermont because child had not lived in
Vermont from birth).
16. Therefore, M.S. did not have a home state when the
proceeding was commenced and jurisdiction could not be
exercised on this basis. See In re A.W., 2014 VT 32,
¶ 20 (concluding that three-week-old child born in
Vermont, transported to New York, where parents had resided
prior to child's birth, and brought back to Vermont did
not have home state because he had not "lived from
birth" in either state); Carl, 945 A.2d at
1209-10 (construing requirement from UCJA that child live
from birth in given state "strictly" and concluding
that child born in Maryland and transported to mother's
home in Virginia at four days old did not have home state).
Significant Connection Jurisdiction
17. Under the UCCJEA, when a child does not have a home
state, Vermont can assert jurisdiction if the child and at
least one parent "have a significant connection with
Vermont other than mere physical presence" and
"substantial evidence is available in Vermont concerning
the child's care, protection, training, and personal
relationships." 15 V.S.A. § 1071(a)(2)(A), (B).
18. Here, the court found that significant connection
jurisdiction existed in January 2015 when the petition was
filed based on the following facts. Mother and father's
two eldest children were in Vermont DCF custody in 2008.
Subsequently, the children were reunified with parents, and
after the family moved to New Hampshire, the children were
placed in the custody of the New Hampshire Division of
Children, Youth and Families (DCYF). Mother and father's
third child, B.S., born in September 2013, was placed in
Vermont DCF custody in January 2014 after DCF became aware
that he had a fractured tibia and two fractured vertebrae and
no explanation for the injuries. At ...