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In re M.S.

Supreme Court of Vermont

September 1, 2017

In re M.S., Juvenile

         On 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.

          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, ___ 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.[1] 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 the forum").

         ¶ 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.[2] 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.[3] 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).

         B. 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.[4] At ...

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