In re A.L.H.

IN_RE_ALH.93-270; 160 Vt. 410; 630 A.2d 1288


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-270


 In re A.L.H., Juvenile                       Supreme Court

                                              On Appeal from
                                              Windham Family Court

                                              June Term, 1993



 Robert Grussing III, J.

 Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
    Montpelier, for appellant

 Kathleen B. London, Windsor County Deputy State's Attorney, White River
  Junction, for state

 Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, for
    appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.   Juvenile, an out-of-state resident attending school in
 Vermont, was placed in the temporary custody of the Department of Social and
 Rehabilitation Services (SRS) after disclosing that she had been sexually
 abused in past years by her father.  She appeals from the Windham Family
 Court's orders relinquishing jurisdiction to juvenile's home state, South
 Carolina, and vacating its previous temporary custody order.  We affirm the
 court's orders.
      Juvenile is a sixteen-year-old girl who lived with her parents in South
 Carolina before coming to Vermont in January 1993 to attend boarding
 school.  Approximately one month after she arrived in Vermont, she disclosed
 to school personnel that her father had sexually abused her from age seven
 to age fourteen, and that her mother had done nothing to protect her.  After
 talking with juvenile, SRS asked the state's attorney to file a petition
 alleging that juvenile was in need of care and supervision (CHINS).
      The family court issued an emergency order placing juvenile in the
 temporary custody of SRS.  On April 15, in response to the parents' motion
 to dismiss for lack of jurisdiction, the court ruled that "the only basis
 upon which this court can exercise jurisdiction beyond issuing temporary
 protective orders is a declination by South Carolina to exercise juris-
 diction."  The court then continued the case for thirty days to allow South
 Carolina time to indicate its intention about exercising jurisdiction.
      In South Carolina, meanwhile, the Charleston County Department of
 Social Services (DSS) suspended its investigation because it wanted the case
 litigated in Vermont.  On May 6, 1993, the parents filed an action in South
 Carolina's family court against DSS, asking that court to assume juris-
 diction of the case.  DSS sought dismissal of the action, but on May 14, the
 court assumed jurisdiction, finding that South Carolina was the proper forum
 to hear the case.  On May 26, the court issued an order placing juvenile in
 the protective custody of the State of South Carolina to be transported to
 South Carolina for appropriate placement.
      That same day, in response to the South Carolina protective custody
 order, the Windham Family Court vacated its temporary custody order.  There-
 after, juvenile went to New Jersey for a few days before returning to
 Vermont.  Following a hearing under the Interstate Compact on Juveniles, 33
 V.S.A. {{ 5701-5715, the Windham Family Court directed SRS to hold juvenile
 for a period not to exceed ninety days to allow the State of South Carolina
 to effect juvenile's return to that state.
      Meanwhile, DSS continues to oppose litigation of the merits in South
 Carolina.  DSS has indicated its intent to appeal the South Carolina family
 court's May 26 protective order, arguing that a protective services action
 must be brought by the local state agency, and that the family court had no
 jurisdiction to order the agency to take juvenile into custody and file a
 child protection action.  Despite its continuing objection, DSS agreed to
 transport juvenile to South Carolina and place her in protective custody in
 view of the South Carolina family court's directive that would allow
 juvenile's parents to transport her to South Carolina.(FN1) DSS contends, and
 juvenile argues on appeal, that "[t]here is no protective services action
 pending in the Courts of South Carolina concerning [juvenile]."
      We granted juvenile a stay of the Windham Family Court's order
 permitting South Carolina social services personnel to remove juvenile from
 SRS custody.  On appeal, juvenile argues that custody should remain with SRS
 because the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. {{
 1031-1051, gives Vermont courts jurisdiction to determine the merits of the
 case.  We conclude, however, that unless South Carolina declines
 jurisdiction, Vermont has no jurisdiction to make a permanent custody
 determination in this matter.
      CHINS proceedings are subject to the UCCJA.  See id. { 1031(3)
 ("custody proceeding" includes child neglect and dependency proceedings).
 Vermont has jurisdiction under the UCCJA if (1) Vermont is the "home state"
 of the child; (2) adjudication in Vermont is in the child's best interest
 because the child and a parent or contestant have substantial connections to
 the state or because there is substantial evidence available in the state
 concerning the child's present or future care; (3) the child is present in
 the state and needs emergency protection; or (4) no other state would have
 jurisdiction under standards similar to (1), (2) and (3), or another state
 has declined jurisdiction because it is more appropriate for this state to
 determine custody and it is in the best interest of the child for that to
 occur.  15 V.S.A. { 1032(a).
      With respect to the first criterion, juvenile does not contend that
 Vermont has ever been her "home state."  See 15 V.S.A. { 1032(a)(1).
 Secondly, we agree with the trial court that the child's connections to the
 state are insufficient to allow "best interest" jurisdiction under {
 1032(a)(2).(FN2) Even if we were to assume that attending boarding school for
 a short period constituted a significant connection to the state, no other
 "contestant" has connections to the state.  SRS is not "a person, including
 a parent, who claims a right to custody or visitation rights with respect to
 a child."  See id. { 1031(3) (defining "contestant"); cf. In re L.W., 486 N.W.2d 486, 501 (Neb. 1992) (construing identical definition of "contestant"
 under Parental Kidnapping Prevention Act, 28 U.S.C. { 1738A(b)(2), court
 held that state acting in role of parens patriae does not fit within
 definition).  Therefore, { 1032(a)(2)(A), which allows the court to assume
 jurisdiction in the child's best interest if the child and at least one
 other "contestant" have significant connections to state, is not applicable.
 Nor does the mere fact that juvenile reported the abuse in Vermont make
 "available in this state substantial evidence concerning the child's present
 or future care, protection, training and personal relationships."  15 V.S.A.
 { 1032(a)(2)(B).  Juvenile has been in Vermont only since January, and her
 reports of abuse pertain to acts committed in another state.  See In re
 Pima County, 711 P.2d 1200, 1205 (Ariz. Ct. App. 1985) (children who alleged
 abuse had occurred in Arkansas and who had been in Arizona only short period
 could not show "availability of substantial evidence" in Arizona by
 referring to evaluations of abuse performed in Arizona), rev'd in part on
 other grounds, 712 P.2d 431 (Ariz. 1986).
      Juvenile also asserts jurisdiction under the UCCJA's emergency
 provision.  See 15 V.S.A. { 1032(a)(3)(B) (child is physically in state and
 emergency protection is required because juvenile "has been subjected to or
 threatened with mistreatment or abuse or is otherwise neglected").  She
 argues that, despite our prior holding that this section "only confers
 jurisdiction for a court to enter temporary protective custody orders," In
 re B.J.C., 149 Vt. 196, 198, 540 A.2d 1047, 1049 (1988), jurisdiction exists
 in this case to make a permanent custody determination because this is not a
 custody dispute between parents and there is neither a prior order nor a
 valid proceeding in South Carolina.  We are not persuaded by this argument.
      Virtually all courts that have addressed the issue have concluded that
 jurisdiction under the UCCJA's emergency provision, particularly in cases
 such as this where the abuse is reported to have occurred in another state,
 does not authorize courts to make permanent custody determinations.  See,
 e.g., In re Pima County, 711 P.2d  at 1206-1207 (in dependency proceedings,
 as well as parental custody proceedings, exercise of emergency jurisdiction
 is limited to temporary orders); Nelson v. Nelson, 433 So. 2d 1015, 1017
 (Fla. Dist. Ct. App. 1983) (emergency jurisdiction sufficient to effect a
 change of permanent custody is limited to instances where child is in
 custody of alleged abuser in state where proceeding is brought); Benda v.
 Benda, 565 A.2d 1121, 1124-25 (N.J. Super. Ct. App. Div. 1989) (emergency
 jurisdiction permitted family court to take only interim protective measures
 concerning children); Curtis v. Curtis, 789 P.2d 717, 723 (Utah App. Ct.
 1990) (protective order based on emergency jurisdiction should continue only
 long enough to determine proper forum).
      While recognizing the differing roles of courts in CHINS cases and
 parental custody disputes, we are not convinced that the distinctions make
 it necessary, or even advisable, to allow permanent custody orders solely
 because of a temporary emergency situation.  To do so would undermine the
 purposes of the UCCJA, which seeks to avoid jurisdictional competition and
 conflict, to prevent forum-shopping, and to assure that litigation con-
 cerning child custody takes place in the state where the child has the most
 significant connections.  See 1979, No. 136 (Adj. Sess.) { 1 (stating
 purposes of UCCJA); Boisvert v. Boisvert, 143 Vt. 445, 447, 466 A.2d 1184,
 1185 (1983) (UCCJA seeks to ensure that custody matters are litigated in
 state where child and family have closest connections); In re Pima County,
 711 P.2d  at 1206-07 (allowing permanent custody orders in dependency
 proceedings arising out of emergency circumstances would have unintended
 effect of excluding such proceedings from purview of UCCJA).
      Regardless of who brings the petition, the primary goal is to have the
 merits of the matter litigated in the most appropriate forum, which in the
 vast majority of cases is the child's home state.  Juvenile asks this Court
 to consider her best interests rather than her connections to her home state
 or comity between jurisdictions.  As a general rule, comity promotes the
 child's welfare, and neither the child's welfare nor comity are advanced by
 allowing the UCCJA's emergency provision to subsume the purposes of the
 Act.  Nelson v. Nelson, 433 So. 2d  at 1018-19.  In this particular
 instance, a South Carolina court has issued orders assuming jurisdiction and
 placing juvenile in the protective custody of DSS.  Following a hearing, the
 court found that it would be in the child's best interest to be returned to
 and placed in protective custody in South Carolina, which is the appropriate
 forum to adjudicate the merits of the case.
      We are aware that DSS is challenging those orders on the ground that
 only it can bring a protective services action in the State of South
 Carolina, but that is an issue for the courts of South Carolina to resolve.
 We will not second-guess the South Carolina family court's assumption of
 jurisdiction.  Section 1032(a)(4) does not apply because South Carolina
 courts have jurisdiction under { 1032(a)(1) and that state has not declined
 jurisdiction.
      Juvenile has expressed her fear that the courts of South Carolina will
 not be willing to protect her from her parents, who, she alleges, are trying
 to commit her to a mental institution.  We read the Windham Family Court's
 orders, as they now stand, to place juvenile in SRS's hands for up to ninety
 days and to permit only South Carolina social services personnel, upon
 proper requisition under the Interstate Compact on Juveniles, to transport
 juvenile back to South Carolina.  We agree with the family court that this
 is the proper course of action under the circumstances.  The merits of this
 case should be decided in South Carolina.  The record indicates that DSS was
 willing, subject to its appeal of the underlying orders, to transport
 juvenile back to South Carolina and place her in protective custody.  If DSS
 refuses to protect the juvenile or the South Carolina family court's orders
 are stayed pending an appeal of those orders, or the Windham Family Court
 otherwise finds that returning juvenile to South Carolina would place her
 in danger, it may issue further temporary orders to assure her protection.
 See In re Pima County, 711 P.2d  at 1207.
      This Court's stay is lifted.  The April 15, May 20, May 26 and June 3,
 1993 orders of the Windham Family Court regarding A.L.H. are affirmed.



                                   FOR THE COURT:


                                   __________________________________
                                   Associate Justice



FN1.    Although the South Carolina family court's oral directive permitted
 the parents to pick up their daughter in Vermont, the court's written order
 permitted only her mother to pick her up.

FN2.    The Parental Kidnapping Prevention Act, which preempts conflicting
 UCCJA provisions, permits "best interest" jurisdiction only if no other
 state has "home state" jurisdiction.  28 U.S.C. { 1738A(c)(2)(B); see Shute
 v. Shute, ___ Vt. ___, ___, 607 A.2d 890, 893 (1992) (in custody case, best
 interest of child is no longer controlling if child has home state under
 PKPA).  The courts are divided on whether the PKPA applies to neglect and
 dependency proceedings.  Compare In re Pima County, 711 P.2d 1200, 1206
 (Ariz. Ct. App. 1985) (PKPA applies to dependency proceeding), rev'd in
 part on other grounds, 712 P.2d 431 (Ariz. 1986) and Kasper v. Kasper, 792 P.2d 118, 129-30 (Utah Ct. App. 1990) (same) with In re L.W., 486 N.W.2d 486, 500-01 (Neb. 1992) (PKPA does not apply to neglect and dependency
 cases) and New Mexico v. Avinger, 720 P.2d 290, 292 (N.M. 1986) (same); cf.
 In re Cifarelli, ___ Vt. ___, ___, 611 A.2d 394, 396-97 (1992) (Shute
 holding accepted in guardianship proceeding).  Because we conclude that the
 "best interest" jurisdiction under 15 V.S.A. { 1032(a)(2) have not been met,
 we need not address the issue of whether the PKPA is applicable here.