International Crisis

By Daniel Richardson

In re RW and NW, 2011 VT 124.

This case is a mess that does not really resolve itself.  Like a couple of heavyweights the majority opinion and the concurrence work over their opponents, land a few solid blows, then go to their corners to wait for the decision.  The end result is less a triumph of reasoning than the exhaustion of good options as each one proves to be unworkable in the general scheme.

Here are the facts.  RW and NW were born in Sri Lanka in 1994 and 1997, respectively.  Their mother was a school teacher, but after father had a business failure, mother came to the United States to work as a nanny.  In 2002, RW joined mother in New York.  The next year, mother re-married another Sinhalese man with US citizenship.  NW came to join her sister within the year, and the whole troupe moved up to Vermont to manage a hotel. 

In 2006, RW told her high school guidance counselor that her step-father was sexually and physically abusing her.  She also revealed that her mother was disciplining her with wooden spoons and broom handles.  Enter the DCF!

Investigators from the Department of Children and Families substantiated RW’s statements and petitioned to have the girls declared children in need of care or supervision, and following an emergency hearing, DCF obtained custody and put RW and NW into a foster home. 

After delays, primarily caused by the lack of availability of a Sinhalese interpreter for the mother, the trial court eventually held a hearing on the merits of DCF’s petition in January 2007.  At the hearing, mother admitted to hitting RW with a wooden spoon.  The trial court ruled that RW had been physically abused and NW was at risk.  The DCF’s petition was granted and the girls’ placement in foster care was extended. 

While the plan had been to have supervised visits with the mother leading up to reunification of the family, this was complicated by a number of issues.  Mother repeatedly pressured RW to recant her allegations against mother and stepfather.  Mother was still living with stepfather—the two had recently had a child together.  And finally, mother’s immigration status was dependent on stepfather, and their continuing marriage—as, it should be noted, was RW’s and NW’s.

In 2008, mother’s attitude appears to have shifted.  Taking RW’s allegations seriously, she kicked stepfather out of the house.  DCF stepped in to help mother find a new apartment and seek visas for her and the girls.  By the end of 2008, the girls were spending the majority of their time with mother but remained in DCF’s legal custody.

By this time, though a new problem emerged.  RW and NW had adopted several American habits and attitudes during their years in foster care.  These clashed with mother’s more traditional Sinhalese values.  A series of escalating arguments led to an incident in March 2009, which the DCF considered serious and put the children once again in foster care. 

Without DCF support, mother’s world appears to have crashed.  She left Vermont and stayed with friends in the Sinhalese community in New York and Texas.  The later appears to have been where stepfather had relocated.  During this time, mother had one supervised visit with the girls.  In February 2010, mother returned to Vermont, began taking English classes and working part-time.  She also instituted divorce proceedings against stepfather.  But this seems to have been too little too late for the DCF, who began a proceeding to terminate mother and father’s parental rights over the girls in September 2009 and did not change its position when mother returned. 

In March 2010, a new issue arose: how to serve a copy of the petition to the father.

Remember him?  Apparently, the DCF had been unable to locate the father doing internet searches, contacting the Sri Lankan embassy, a Sri Lankan government office where he had supposedly been employed, or a friend of the mother who had contacts with father.  The trial court granted DCF’s petition to serve the complaint by publication in major newspapers around Sri Lanka. 

Here is why this is a big deal.  It is a bit of law school 101.  So bear with me.  As a general proposition, you can file a lawsuit anywhere in this country.  If you live in Alaska, there is nothing preventing you from filing a lawsuit in Florida or any of the other lower 48 states.  Courts are open to all, and by starting the case, you are choosing the court and voluntarily submitting to its jurisdiction. 

For Defendants, however, there is no such choice, and courts, as required by the Constitution, have to look carefully to see that each defendant has the minimum contacts with the state necessary to make jurisdiction fair.  Here is the easy case: a Vermont resident is sued in Vermont state court.  No problem.  Here is the second easy case: a Vermont resident is sued by someone in Oregon.  The Vermonter has never lived in Oregon, never traveled to or through Oregon, never sent anything to anyone in Oregon, never solicited anything from anyone there, and has, in short, never had any connections with the state or its residents.  In such a case, there is no jurisdiction, and the case cannot stand against the Vermonter.

The hard cases are just about everything in between the easy cases.  The issue is heavily litigated because if a defendant can show a lack of minimum contacts, she is home free and the case is dismissed.  If not, Defendant can look forward to expensive out-of-state litigation.  For the courts, the important issue is whether defendant’s contacts with the state are extensive enough to make it fair to haul the person into this particular court.  The fewer the contacts, the less fair it is. 

For both the trial court and the SCOV, the issue with father raises all of these issues.  Father has never set foot in Vermont (or the United States).  His only connection to the state is that his (ex)-wife and daughters live there.  Otherwise Vermont and father are strangers to each other, and there is no connection that would justify anyone suing father in Vermont. 

Except—and there is always an exception—that the issue before the trial court and the SCOV was not strictly about jurisdiction in a larger sense but within the specific context of child custody.  This difference is critical.  While courts, as a general rule, cannot move against defendants who lack basic jurisdiction, they can for specific status issues.  The best example is divorce.  If a wife moves to another state, she can sue for divorce.  The court has jurisdiction even if the marriage did not occur in that state and even if the husband has no contacts with the state.  The court can adjudicate the divorce (and by bring-in the husband) because the state and the court have an interest in the status of its residents, in this case the wife. 

In this case, DCF admits that father lacks minimum contacts with the state of Vermont for the purposes of jurisdiction, but it argues that the court can adjudicate the father’s parental rights because RW and NW are residents of Vermont and the state has interest in the status of their parental rights. 

This is a question of first impression and a tough one besides.  Basically, the trial court was and the SCOV is faced with the question of whether it should make a decision about father’s parental rights when father has no contact with Vermont and would be hard put to muster a meaningful defense from the literal other side of the world.  (If you do not think this is offensive on some level, imagine an American father fleeing to Saudi Arabia with the kids and getting a court over there to terminate the American mother’s parental rights—paging Mr. Limbaugh . . . Mr. O’Reily . . . Ms. Grace.)

Yet the state and we, its citizens, have an interest this issue.  DCF has jurisdiction over all children in Vermont regardless of how long they have been here, who their parents are, or where they live.  If children in Vermont have been abused, or it is no longer in their best interests to stay in parents’ custody the state has an interest and an obligation to act.  A parent’s absence or lack of contacts with the state of his or her child’s residence may be indicative and part of the parent’s lack of fitness or abuse.

The trial court punted on the issue.  It allowed service by publication, but it refused to rule on father’s parental status due to the lack of contacts.  On appeal, a majority of the SCOV rules that jurisdiction over the father’s parental rights is proper under the status exception and termination can follow.  In coming to this decision, the majority carefully picks through the last 75 years of jurisprudence on the issues and finds it to be confusing. 

Just one example shows how tortuous the legal reasoning and analysis is in this case.  The leading case on the issue is a U.S. Supreme Court decision from 1953 known as May v. Anderson, 345 U.S. 528 (1953).  The majority of that decision seems to have ruled that a parent must have minimum contacts with the state to establish a state’s right to terminate parental rights.  But as the majority here points out, no one pays attention to that majority decision, since everyone gives Justice Frankfurter’s lone concurrence the greater weight.  The result is that there SCOV majority uses the May decision to justify its final hold despite the fact that it is contrary to the majority opinion.  This is achieved by distinguishing and filtering May through Justice Frankfurter’s concurrence, which conveniently removes the language with which the SCOV disagrees. 

The rest of the cases provide no greater clarity.  A number of states have considered the issue and have come out in different ways for different reasons.  The SCOV majority does yeoman’s work corralling these cases together and developing a through line of reasoning that indicates that taking status-based jurisdiction of parental rights for an out of state parent is, on the whole, fair and just.  Saying something is fair and just does not make it so, and the majority opinion is stepping tentatively in this area because of the essential inequalities at play here.

In the end, the SCOV majority rules that the trial court may consider father’s parental rights, but it reverses and remands the entire case because the trial court never held a hearing or took evidence on the father’s role in the girls’ lives.  Even if father fails to appear, DCF is still obligated to prove that his rights merit termination.

The SCOV also reverse’s the mother’s termination of her parental rights because the trial court applied the wrong standard to find that her parenting skills had stopped growing and had stagnated.  The trial court found that mother had stagnated through a preponderance of the evidence, but the standard is clear and convincing.  The difference is between being 51% as opposed to 75% sure mother has stopped developing as a parent.  Court made a finding on the 51% basis, and the SCOV cannot conclude as a matter of law that the evidence is there for the 75%.  So back it all goes for another round.

Justice Dooley, joined by Justice Johnson, concurs with the majority’s outcome, but the dissent focuses in on the short comings of DCF.  In the dissent’s view most of the problems with the case come from DCF’s failure to notify the father earlier and involve him in the process.  This oversight allowed father to slip through the cracks until the last possible minute.  For the dissent, DCF needed to start early and often with the father.  Many of the gaps and ambiguities, according to the dissent, are attributable to the DCF’s lack of diligence.  No one knows if father and mother actually divorced.  This is DCF’s fault. 

In essence, the dissent notes that DCF waited until the last minute to contact father, and it should be no surprise that DCF found it to be a difficult job with little success.  More importantly, DCF has failed to follow standards set by the Uniform Child Custody Jurisdiction Act and the Vienna Convention on Consular Relations.  It never contacted the Sri Lanka embassy until the hearing, and it never assigned counsel for father.      

Yet, for all of the dissent’s points, there is still the fundamental question, why did father wait so long?  What did he do when children left?  What did he know about his children?  Why didn’t he try to contact them prior to 2010?  Father’s behavior has all the hallmarks of abandonment.  To what extent can DCF be blamed for not shifting its limited resources on what may very well be an international snipe hunt?

In the end, all the parties will have another chance to sway the trial court with another round of hearings.  Of course, this will likely be moot for RW who will turn 18 next year and will not longer be under the jurisdiction of DCF. 

In all seriousness, if I was Doug Racine or one of the commissioners at the Department of Human Services, I would send a copy of this decision to every single state legislator, the state’s congressional delegation, and my superiors on the fifth floor with the note, “This is what happens when you cut our budget.  Imagine what will happen if you cut more.”  In the end, this is a tough case with an extreme set of facts that may have far greater impact as both American and international migrations continue to grow.