Thursday, May 29, 2014

Juvie Jurisdiction

In re A.W., 2014 VT 32

By Elizabeth Kruska

A.W. was a baby (like, 20 days old or so) when this case began.

Mom and Dad lived in Enosburg in 2012, when Mom got pregnant with A.W. Mom and Dad had some rocky issues, both together and on their own; mental health, drug use, drinking, and eventuallydomestic problems together. Before A.W. was born they moved to Plattsburgh, New York, although Mom continued getting her medical care across the pond at Fletcher Allen. A.W. was born in Burlington, and shortly after his birth, the family went to Dad’s parents’ home in Swanton. They apparently went back to New York not long after, because the Plattsburgh police ended up responding to a domestic dispute between the parents when A.W. was about a week old. Mom ended up in a psych ward; Dad returned to Swanton with A.W. and made plans to stay there.

Dad signed up for all sorts of Vermont services (welfare assistance, a temporary relief from abuse order, a Vermont DCF safety plan), and it looked like he was going to stay.

A week or so later Vermont DCF got a heads-up that Dad still had ongoing substance problems. They went to investigate at the grandparents’ home in Swanton, and learned Dad had left with A.W. Grandparents thought he probably went back to Plattsburgh where Mom was. DCF filed a child in need of care and supervision (CHINS) petition to take A.W. into state custody, and did so the next day when A.W. was back in Vermont for a medical appointment with Mom. The juvenile court authorized state custody, and A.W. was placed with his grandparents in Swanton. At this point, A.W. was about 3 weeks old.

Early in the case, Mom moved to dismiss for lack of jurisdiction, saying New York was A.W.’s “home state,” citing involvement with New York child-protection authorities relative to A.W. The State opposed, saying the court could exercise jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The State produced information that the New York investigation had been closed as a result of Vermont taking A.W. into custody, and argued that the family had lots of ties to Vermont sufficient to establish jurisdiction.

The plan was for the court to contact the New York court to figure out who had jurisdiction. Vermont DCF was ordered to contact its New York counterpart and inquire about transferring the case. For reasons unclear, those things didn’t happen. The parties returned for a hearingat this point six months past the emergency hearingand the court decided it had appropriate jurisdiction to go forward. Everyone agreed to come back a month later to update the court on the parents’ progress and services.

By the time the next hearing rolled around, Dad was in jail in New York on a domestic-violence charge, and information about Mom’s participation in services was limited. (N.B.: SCOV notes that Mom was a passenger in a car that was involved in a fatal accident that killed a pedestrian. Why this is included is intriguing, because being a passenger probably doesn’t have anything to do with her ability to be a parent. Seems like a bit of a throwaway statement and just kind of makes Mom look bad. But I digress.)

Mom raises jurisdiction again, and the court maintains Vermont is correct. A merits hearing is finally held nearly a year after the petition was filed, and a CHINS finding was made. Parents appeal.

The SCOV first tackles the jurisdiction issue, by examining it under the UCCJEA. There are a few different waysincluding an "emergency" provisionthat give a state jurisdiction in a case like this. It makes perfect sense that if a child was neglected or abandoned in one state that might not technically have jurisdiction, that there could be intervention in an effort to protect the kid. Best interests, you know?

The SCOV says that Vermont had jurisdiction anyway, though. A.W. had significant ties to Vermont. A.W. had not continuously lived in Vermont for six months prior to the beginning of the case, since he was 3 weeks old when it began. He was born in Vermont, and when he was tiny, Dad brought him to Vermont to live with his own parents and accessed lots of State services. The SCOV uses a “totality of the circumstances” test, and finds that based on all this, there was enough to find jurisdiction.

Dad argues, well, ok, even if that’s the case, Vermont is an inconvenient forum, since both he and mom live in New York. SCOV bats this one away, too, saying that A.W. was placed in Vermont, and all the evidence relative to his day-to-day care came from Vermont.

Turning to the merits, the parents argued that there wasn’t enough evidence to show that A.W. was without proper parental care. Although they had drug and alcohol use issues, none of those things were found in A.W.’s system. Let’s all agree that’s a good thing.

SCOV says no to this, too. It was more than just the fact of the use of drugs and alcohol that created the CHINS situation. It was the drugs, alcohol, mental health problems, and physical confrontations between parentsat least one of which involved tugging at A.W. (and if my reading is correct, more than one physical event ended in arrest). The court used all those factors in finding that A.W. was in need of care and supervision, and SCOV affirms.

Justice Robinson writes separately to concur, and raises two very good points.

First, she’s not happy about the delay in the case. The case started when A.W. was 3 weeks old, and the merits hearing didn’t happen until he was nearly a year old. For someone who is only a year old, that’s a lifetime. That’s enough time for someone to go from being unable to hold up his head to probably crawling and knowing some words. She points out that jurisdictional issues must be dealt with pretty quickly, and that courts are supposed to give these issues priority on the calendar.

Second, she points out that Vermont might actually be an inconvenient forum. DCF involvement is a burden on parents, and traveling between states makes it that much more difficult. For those unfamiliar with DCF plans, a DCF plan for a case like this might include drug-and-alcohol counseling, mental-health counseling, supervised visits, medical treatment, and parenting classes. I don’t know that that is what was ordered here, but all this seems possible, and it’s a lot. And if parents live in another state, not only would they have to do all that stuff, but have to travel back and forth between there and here. This doesn’t leave a lot of time for work, and can become a big financial burden. This burden might easily make reunification of A.W. with his parents beyond their reach. Is that in A.W.’s best interests?

Justice Robinson isn’t saying the decision was wrong, but points out that the Vermont court could have issued an interim order maintaining jurisdiction until a new case could be opened in New York. A more-convenient forum might better facilitate the things the parents needed to do to achieve reunification between parents and child if that’s the goal.

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