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| Reverse Stork |
By Elizabeth Kruska
Hey! It’s another UCCJEA case! I happen to like the UCCJEA because it gives a nice clear, concise set of rules about what state has jurisdiction in child custody matters. But, there’s a tricky part of the UCCJEA which is perhaps less likeable, and which is a fairly big issue in this case. And that’s the issue of where a newborn baby lives. What?
Mom and Dad have a total of four kids. M.S. is the youngest of those kids, having been born in January of 2015. The thing about 2015, from a juvenile court perspective, is that it was when Vermont saw an enormous explosion of child-in-need-of-care-and-supervision (CHINS) petitions. This was likely part of that giant CHINS boom. I say this only for some context. For other context, this particular case originated in Windham County which, as people with maps know, borders New Hampshire. It’s pretty common for people who live on or near the Connecticut River to have friends, family, jobs, services—whatever—on both sides of the river.
Mom and Dad’s oldest two kids were subject of Vermont DCF proceedings in 2008, and then of New Hampshire DCYF proceedings later on (at that point the family lived in New Hampshire). Ultimately termination of parental rights petitions were filed in New Hampshire, and the parents’ rights to those two children were terminated. Then there’s a third child, who was taken into Vermont DCF custody in 2013 at a time when the parents lived in Vermont.
In late 2014, Mom was pregnant and basically homeless and staying with various friends and relatives on both sides of the river. In November, 2014 she was admitted to a hospital in New Hampshire. She listed a Vermont address for purposes of accessing certain services, but she seemed to intend to live with some relatives in New Hampshire upon her release. In January 2015, M.S. was born in a New Hampshire hospital (Same one? Not clear), and Vermont DCF swooped in like a reverse stork to take custody of him at the time of his birth.
So, across the river they go for a temporary-care hearing. Mom shows up. Dad shows up. Now, Mom and Dad aren’t married, so there is no presumption that Dad is Dad. Dad also had not signed a voluntary acknowledgement of parentage at the hospital, which is pretty commonly done when a child is born to unmarried parents. During the hearing, Dad said he was Dad. Mom said, “Nope” and did not agree to acknowledge voluntarily that Dad was Dad. So, the judge kicked Dad and his attorney out of the courtroom and the proceedings went forward. Dad didn’t object to this, or ask for genetic testing at the time. The judge also didn’t order genetic testing right at that moment, and ordered DCF to investigate and find out who the father of M.S. was. But Mom wasn’t talking. So, in April of 2015, the State filed a motion seeking genetic testing of Dad. This was done, and by June of 2015 it was established that Dad was Dad.
A hearing on the merits of the CHINS petition started in May, before it was established that Dad was Dad. It reconvened in August after Dad was established to be Dad. He showed up and was allowed to participate. The court found that the child was CHINS, and ordered that the case proceed to disposition. There was an initial case plan (because by statute there’s supposed to be a plan created within 60 days) that was full of services and supportive suggestions for parents. Apparently the parents didn’t follow through with the recommendations in the plan, because the disposition case plan called for the parents’ rights to be terminated. Usually disposition case plans allow for some time for parents to work through the case plan to regain their ability to parent. That wasn’t the case here, because by the time they got to disposition it was already at least eight months since the petition was filed, and presumably DCF knew what they wanted to know about the parents’ ability to follow the case plan.
So, the TPR gets filed, and litigated, and the court terminated the parents’ rights. The parents appeal, raising several issues. SCOV affirms.
First of all, parents raise an issue of jurisdiction. They argue that Vermont never even had jurisdiction to hear the case. The baby was taken into DCF custody right away at birth. The baby was born in New Hampshire. Before that, Mom was staying with friends in New Hampshire. She had been in the hospital in New Hampshire. She said she planned to live in New Hampshire with the baby after leaving the hospital.
When dealing with the UCCJEA, the court often has to determine the child’s home state. This involves looking at where the child lived during the preceding six months. But, if you’ve got someone who is only 45 minutes old, there isn’t a preceding six months. SCOV finds that in this situation there isn’t really a home state.
So, SCOV turns to the question of the parents’ contacts. Dad was a Vermont resident. Mom was homeless, but was getting mail at a Vermont address. They also had significant connections to Vermont. Their oldest kids had been in Vermont DCF custody in the past, and their third child was actively in Vermont DCF custody when this case was initially filed. SCOV concludes that there was enough of a connection between the family and Vermont to say Vermont had jurisdiction.
The parents also argue that the Vermont court should have communicated with the New Hampshire court to figure out where jurisdiction was proper. SCOV disagrees. The UCCJEA says the courts may talk to one another, but it isn’t required. Furthermore, that comes up more in the context of where there is already an open family court case in another state with respect to the child at issue. Here, there was no competing case in New Hampshire, so there wasn’t necessarily a reason for the two states’ courts to communicate to determine which one has jurisdiction.
Dad raises the issue of his being removed from the early parts of the proceedings. SCOV is unhappy that the trial court did not immediately order genetic testing at the time of the temporary care hearing. These cases are supposed to move along. Genetic testing usually takes a while—sometimes a couple months. It doesn’t make a lot of sense that there was a putative father in the room asking to be named as father, and then not to order testing. SCOV says, though, that the timing of the testing would not have changed the outcome. While they’re unhappy with the timing, it’s not a reason to reverse.
Finally, the parents raised an issue with respect to the Vermont court receiving evidence of the fact they had two other kids TPR’d in New Hampshire. SCOV says this was fine. The court didn’t make findings based on the prior TPR’s, it just admitted those pieces of evidence.
There’s a concurring opinion and a dissent.
Justice Robinson concurs in the judgment, but doesn’t like the mental gymnastics involved in the home-state analysis. She points out that there are loads of times when a child might be born in one state but would be ultimately domiciled in another state. We can’t help where the hospitals are. My closest hospital is Dartmouth; if I were having a child, that’s probably where it would happen. It just happens to be that there’s a state line in the way. It makes little sense to say that a parent’s intent about where they’re going to live isn’t relevant.
Judge Teachout was specially assigned, and she dissents in part. She would have remanded the case for a new disposition so that Dad could have a chance. By the time Dad was named as parent, the child was about 5-6 months old and had been kept out of the proceedings. It would be hard for him to prove he was parenting adequately if he wasn’t involved. And if he wasn’t involved because he wasn’t allowed to be, that isn’t really his fault. So, she’d send it back to give him a shot.
So, across the river they go for a temporary-care hearing. Mom shows up. Dad shows up. Now, Mom and Dad aren’t married, so there is no presumption that Dad is Dad. Dad also had not signed a voluntary acknowledgement of parentage at the hospital, which is pretty commonly done when a child is born to unmarried parents. During the hearing, Dad said he was Dad. Mom said, “Nope” and did not agree to acknowledge voluntarily that Dad was Dad. So, the judge kicked Dad and his attorney out of the courtroom and the proceedings went forward. Dad didn’t object to this, or ask for genetic testing at the time. The judge also didn’t order genetic testing right at that moment, and ordered DCF to investigate and find out who the father of M.S. was. But Mom wasn’t talking. So, in April of 2015, the State filed a motion seeking genetic testing of Dad. This was done, and by June of 2015 it was established that Dad was Dad.
A hearing on the merits of the CHINS petition started in May, before it was established that Dad was Dad. It reconvened in August after Dad was established to be Dad. He showed up and was allowed to participate. The court found that the child was CHINS, and ordered that the case proceed to disposition. There was an initial case plan (because by statute there’s supposed to be a plan created within 60 days) that was full of services and supportive suggestions for parents. Apparently the parents didn’t follow through with the recommendations in the plan, because the disposition case plan called for the parents’ rights to be terminated. Usually disposition case plans allow for some time for parents to work through the case plan to regain their ability to parent. That wasn’t the case here, because by the time they got to disposition it was already at least eight months since the petition was filed, and presumably DCF knew what they wanted to know about the parents’ ability to follow the case plan.
So, the TPR gets filed, and litigated, and the court terminated the parents’ rights. The parents appeal, raising several issues. SCOV affirms.
First of all, parents raise an issue of jurisdiction. They argue that Vermont never even had jurisdiction to hear the case. The baby was taken into DCF custody right away at birth. The baby was born in New Hampshire. Before that, Mom was staying with friends in New Hampshire. She had been in the hospital in New Hampshire. She said she planned to live in New Hampshire with the baby after leaving the hospital.
When dealing with the UCCJEA, the court often has to determine the child’s home state. This involves looking at where the child lived during the preceding six months. But, if you’ve got someone who is only 45 minutes old, there isn’t a preceding six months. SCOV finds that in this situation there isn’t really a home state.
So, SCOV turns to the question of the parents’ contacts. Dad was a Vermont resident. Mom was homeless, but was getting mail at a Vermont address. They also had significant connections to Vermont. Their oldest kids had been in Vermont DCF custody in the past, and their third child was actively in Vermont DCF custody when this case was initially filed. SCOV concludes that there was enough of a connection between the family and Vermont to say Vermont had jurisdiction.
The parents also argue that the Vermont court should have communicated with the New Hampshire court to figure out where jurisdiction was proper. SCOV disagrees. The UCCJEA says the courts may talk to one another, but it isn’t required. Furthermore, that comes up more in the context of where there is already an open family court case in another state with respect to the child at issue. Here, there was no competing case in New Hampshire, so there wasn’t necessarily a reason for the two states’ courts to communicate to determine which one has jurisdiction.
Dad raises the issue of his being removed from the early parts of the proceedings. SCOV is unhappy that the trial court did not immediately order genetic testing at the time of the temporary care hearing. These cases are supposed to move along. Genetic testing usually takes a while—sometimes a couple months. It doesn’t make a lot of sense that there was a putative father in the room asking to be named as father, and then not to order testing. SCOV says, though, that the timing of the testing would not have changed the outcome. While they’re unhappy with the timing, it’s not a reason to reverse.
Finally, the parents raised an issue with respect to the Vermont court receiving evidence of the fact they had two other kids TPR’d in New Hampshire. SCOV says this was fine. The court didn’t make findings based on the prior TPR’s, it just admitted those pieces of evidence.
There’s a concurring opinion and a dissent.
Justice Robinson concurs in the judgment, but doesn’t like the mental gymnastics involved in the home-state analysis. She points out that there are loads of times when a child might be born in one state but would be ultimately domiciled in another state. We can’t help where the hospitals are. My closest hospital is Dartmouth; if I were having a child, that’s probably where it would happen. It just happens to be that there’s a state line in the way. It makes little sense to say that a parent’s intent about where they’re going to live isn’t relevant.
Judge Teachout was specially assigned, and she dissents in part. She would have remanded the case for a new disposition so that Dad could have a chance. By the time Dad was named as parent, the child was about 5-6 months old and had been kept out of the proceedings. It would be hard for him to prove he was parenting adequately if he wasn’t involved. And if he wasn’t involved because he wasn’t allowed to be, that isn’t really his fault. So, she’d send it back to give him a shot.
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