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In re A.M.

Supreme Court of Vermont

October 25, 2019

In re A.M., Juvenile

          On Appeal from Superior Court, Windham Unit, Family Division Katherine A. Hayes, J.

          Adele V. Pastor, Barnard, for Appellant

          Mother. Kerry A. McDonald-Cady, Windham County Deputy State's Attorney, Brattleboro, for Appellee.

          PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Tomasi, Supr. J., and Burgess, J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 1. Mother appeals the family division's disposition order transferring custody of her six-year-old daughter A.M. to father, who lives in Colorado. Specifically, mother argues the court erred in directing mother to pay for 75% of the costs of transporting the child back and forth to Vermont for contact with mother. We agree and reverse.

         ¶ 2. The following facts are derived from the court's disposition order. A.M. was born in November 2012. Mother and father were then married and living in Colorado. In October 2013, the parties separated and mother returned with A.M. to Vermont to live with mother's parents. Father filed for divorce in Colorado. Pursuant to the Colorado divorce order, A.M. spent much of the summer in Colorado with father and lived with mother in Vermont the rest of the year.

         ¶ 3. In February 2018, the Department for Children and Families (DCF) filed a petition alleging that A.M. was a child in need of care or supervision (CHINS) due to mother's heroin use and statements that she might kill herself and A.M. In May 2018, mother stipulated to the merits of the CHINS petition. In July 2018 DCF filed a disposition case plan recommending that custody of A.M. be discharged to father with mother having reasonable and appropriate parent-child contact. Later that month, the court held an on-the-record conference with the court in Yuma County, Colorado, where father resides. The Colorado court ceded jurisdiction over custody issues relating to A.M. to Vermont.

         ¶ 4. DCF received a positive report about father's home from Colorado's Department of Human Services in June 2018. DCF subsequently placed A.M. with father in Colorado, where she continues to reside. She has visited mother and maternal grandparents for vacations.

         ¶ 5. A contested disposition hearing was held over three days in October and December 2018 and January 2019. In a written order issued in March 2019, the court found that although mother had made progress toward sobriety, it was in A.M.'s best interests to transfer custody to father. It ordered that mother was entitled to the same parent-child contact that the parents' divorce decree gave to father. However, for equitable reasons, it found that mother should bear the majority of the costs related to transporting A.M. to Vermont for visits. Specifically, the court found that father was paying for most of A.M.'s food, clothing, health care, and recreational and educational needs; mother had chosen to relocate to Vermont; and mother's inability to care for A.M. had led to the change in custody. The court therefore directed mother to pay at least 75% of the transportation costs required to transport A.M. to and from Vermont for parent-child contact with mother.

         ¶ 6. The court acknowledged that there was no pending petition for modification of parental rights and responsibilities in Vermont or Colorado, and that it was effectively modifying the Colorado divorce decree. However, it concluded that its order was consistent with the Colorado court's relinquishment of jurisdiction over modification issues under the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A. §§ 1061-1096. The court therefore issued a disposition order and a parental rights and responsibilities order. It stated that Colorado should have primary jurisdiction over future issues related to A.M.'s custody because Colorado had become her home state.

         ¶ 7. On appeal, mother's sole challenge is to the portion of the court's orders directing her to pay 75% of the costs for A.M.'s visits to Vermont. She concedes that the Vermont court had jurisdiction to transfer custody to father and establish parent-child contact for mother under 33 V.S.A. § 5318. However, she argues that the court lacked authority in this CHINS proceeding to make an order allocating travel costs, particularly since neither party requested such an order, there was no warning to the parties, and no evidence was taken regarding their relative financial conditions. The State does not disagree and joins in mother's arguments on this issue.

         ¶ 8. Whether the court had authority to issue an order allocating the costs of travel for parent-child contact to the noncustodial parent at disposition in this CHINS proceeding is a question of law that we review without deference to the trial court. See State v. VanBuren, 2018 VT 95, ¶ 19, __ Vt. __, 214 A.3d 791 (explaining that we review pure questions of law without deference to trial court).

         ¶ 9. We agree with the parties that the family division lacked authority to make such an order here. A CHINS case is a legislatively created proceeding in which the family division of the superior court is vested with special and limited statutory powers. 33 V.S.A. § 5103(a); see In re Lee, 126 Vt. 156, 157, 224 A.2d 917, 918 (1966) (explaining that court overseeing juvenile proceeding "may be classed with the probate courts, the public service commission, and other bodies exercising special and limited statutory powers not according to the course of the common law" (quotation omitted)). "Generally, unless statutory authority exists for a particular procedure, the juvenile court lacks the authority to employ it." In re J.S., 153 Vt. 365, 370, 571 A.2d ...

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