In re A.M., 2019 VT 79
In re: A.M. is a good example of, “sometimes it makes sense to do something in order to get it done, but it isn’t necessarily okay to do that.”
The basic facts are this. Mom and Dad are the parents of A.M. They all used to live in Colorado. Then Mom and Dad filed for divorce and after the divorce, Mom moved to Vermont with A.M. Mom’s family is from Vermont, so this move makes sense. A.M. spent big stretches of time in Colorado with Dad.
Several years later Mom started to struggle with substance use, and came onto DCF’s radar. A child in need of care or supervision (CHINS) case was filed. It’s not clear where A.M. lived initially while the CHINS case was pending, but several months in DCF decided to recommend that she go live with her dad in Colorado as a resolution to the case.
The proposal to move A.M. to go live with her dad was contested, and the court heard evidence on this over the course of three days. A few months later the court issued a written ruling indicating that even though Mom had made a lot of progress, it was in A.M.’s best interest to continue to live with her dad. The order included provisions for parent-child contact between Mom and A.M. It also included a provision that costs of transportation for A.M.’s visits with Mom would be shared, with Mom responsible for 75% of the costs.
And this is where, if it was a movie, there’d be that record scratch noise, and everyone’s heads would turn.
That’s because this isn’t something anybody in the case asked for or expected to come out of the hearing. This is something Mom appealed, and which SCOV reversed.
There are a number of complicated things that happened here.
First of all, there was a valid divorce decree out of Colorado, and until the CHINS case was filed, that order was what ruled the day with this family. The Uniform Child Custody Jurisdiction Enforcement Act, or the UCCJEA, is a fabulous set of statutes that spring to life when there is a child custody-related decision to be made, and when there are multiple states involved. The opinion doesn’t go into this, so I’ll be brief. When jurisdiction starts with the child’s home state, which was Colorado at the time the divorce order issued, that state retains jurisdiction until it gives it up to another state.
Mom moved to Vermont and A.M. went with her. The CHINS case was filed about five or six years after they moved. When the CHINS case was filed, Colorado gave up jurisdiction to Vermont since that had become A.M.’s home state. However, the original Colorado divorce order was still an effective order.
When the court ultimately decided to discharge custody of A.M. to Dad, that acted as a modification of the Colorado order. The court also said that since A.M. was back to Colorado that they should take back jurisdiction for future modifications and enforcement.
A CHINS proceeding can have the effect of modifying a family court order. It happens pretty frequently, actually, if there is a CHINS case connected to a family with an existing domestic order. That’s because if a CHINS case is filed and the merits proven, the court is required by statute to issue a disposition order. The controlling statute requires the court to make an order related to custody for a child in the best interest of the child. If there’s a domestic order, like a divorce, sometimes a CHINS disposition goes back to the original domestic order. But if that’s not in the best interest of the child, the court can make a change, which may have the effect of modifying the domestic order.
The court can also order parent-child contact, including parameters around that contact, like whether contact should be supervised.
The court is limited, though, with respect to other issues, like child support or other cost allocations. That’s because CHINS authority is very limited. The legislature meant for juvenile court to deal with issues of child protection, not all matters of child custody; that’s why we have family court.
So, SCOV found here that although the CHINS disposition order, which acted as a modification to the existing divorce order, was fine, going the extra step of apportioning costs was not allowed by statute.
The other part of this, is that none of the parties had notice that this would be a part of the order. Also, none of the parties asked the court to make an order regarding costs. If they knew, they could have prepared evidence for the court so the court could make necessary findings on the matter.
So, this gets reversed and sent back to the trial court to issue a new disposition order without the cost sharing provision.
I get what the trial court did here. This case lasted over a year. The disposition hearing stretched out over 3 days over the course of several months. The court made a disposition order that was in A.M.’s best interest but then returned jurisdiction to Colorado. If there was going to be an issue over who was going to pay for transportation, Colorado would have to hear it. That could take a long time, could cost money, and could have the effect of A.M. not being able to see her mom until that issue was sorted out. It feels inefficient, but the court’s options are limited by statute.
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