In re Cifarelli

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 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.
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                                 No. 90-332


 In re Anabelle Cifarelli                     Supreme Court
 (Annamae Turull, appellant)
                                              On Appeal from
                                              Chittenden Superior Court

                                              December Term, 1991


 Stephen B. Martin, J.

 Charles R. Tetzlaff of Latham, Eastman, Schweyer & Tetzlaff, Burlington, for
   plaintiff-appellant

 William B. Gray of Sheehey Brue Gray & Furlong, Burlington, for defendant-
   appellee


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

      MORSE, J.   On December 10, 1988, Anabelle Cifarelli's parents and
 sister were asphyxiated in their Burlington home when a gas heating system
 malfunctioned.  Anabelle, five months old at the time, survived and now
 lives with her maternal grandmother, Joan von Albrecht, in Bermuda.  This
 controversy centers on the efforts by the paternal grandmother, Annamae
 Turull, who lives in Connecticut, to obtain visitation with Anabelle.
      Mrs. Turull appeals a superior court decision vacating a probate order
 which conditioned Joan von Albrecht's authority to consent to adoption on
 the allowance of "reasonable right of visitation, or access ... for
 [Anabelle] to maintain her relationship with her paternal grandmother."  The
 superior court held that Vermont did not have subject matter jurisdiction
 over Anabelle's custody or visitation because, under the provisions of the
 Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. {{ 1031-1051,
 Bermuda was the proper jurisdiction to consider these issues.  We affirm,
 but, because we hold the probate court did not have jurisdiction to order
 any relief beyond an initial order giving Mrs. von Albrecht temporary
 guardianship of Anabelle, we vacate the probate order dated January 12,
 1990, in its entirety.
      Anabelle was placed in the temporary custody of the Vermont Department
 of Social and Rehabilitation Services after her parents' deaths.  At that
 time, Anabelle had no living relatives in Vermont.  On December 13, 1988,
 she was released by the district court to the custody of Mrs. von Albrecht,
 a resident of Bermuda and appellee in this case.  Mrs. von Albrecht obtained
 a guardianship appointment from the Chittenden Probate Court the next day.
 Shortly thereafter, following discussions with the child's paternal
 relatives, Mrs. von Albrecht took Anabelle to her home in Bermuda.
      The parties disagree on the substance of their initial conversations
 regarding Anabelle.  Mrs. Turull maintains that she was under the impression
 that Mrs. von Albrecht's custody of the child would be temporary.  Mrs. von
 Albrecht, on the other hand, argues that the parties understood that long-
 term custody of the child would be with her.  On December 19, 1988, Mrs.
 Turull initiated her own guardianship petition in probate court.  At a
 December 19, 1989 status conference, the court appointed a guardian ad
 litem for Anabelle.  Mrs. Turull did not request a hearing on her petition
 in the year that passed between its filing and the date it was first heard,
 January 10, 1990.  During this time, the child lived with Mrs. von Albrecht
 in Bermuda.
      On May 3, 1989, Mrs. von Albrecht submitted an adoption application in
 Bermuda, but did not inform Mrs. Turull of that action until August 1989.
 Apparently unable to resolve disagreements regarding visitation, Mrs. Turull
 requested the probate court to allow grandparent visitation under 15 V.S.A.
 { 1011 in the event her guardianship application was denied.  On the same
 date, Mrs. von Albrecht moved to dismiss Mrs. Turull's petition for lack of
 subject matter jurisdiction.
      On January 12, 1990, the probate court denied Mrs. von Albrecht's
 motion to dismiss and issued an order, giving her the authority, as the
 child's guardian, to consent to her husband's adoption of the child in
 Bermuda, but conditioned that authority on the allowance of paternal
 grandparent visitation.  See 15 V.S.A. { 435(4) (consent shall be given by
 guardian if minor to be adopted is under a guardianship).  The probate court
 also awarded Mrs. Turull preadoption visitation under the grandparent visi-
 tation statute, holding, without explanation, that the UCCJA did not apply.
 Mrs. von Albrecht appealed to Chittenden Superior Court and moved to dismiss
 the visitation petition and vacate that part of the guardianship order that
 conditioned her right to consent to adoption.  Mrs. Turull did not contest
 in superior court the probate court's judgment in any respect.  The superior
 court gave Mrs. von Albrecht unconditioned authority to consent to the
 adoption in Bermuda, and Mrs. Turull has appealed to this Court, claiming
 that Vermont courts have jurisdiction to resolve the visitation dispute. At
 the time of the appeal, the child was almost two years old and had been
 living with Mrs. von Albrecht for one and one-half years.
      In the meantime, a Bermuda "Special Court" dismissed Mrs. von
 Albrecht's Bermuda adoption petition on November 9, 1990.  She appealed
 that order, and, after a hearing, the Bermuda adoption application was
 granted with no conditions attached.  This Court was informed at oral
 argument, however, that there is a procedure which allows that dispute to
 continue, by way of appeal to an appellate court in England.
      Throughout this controversy, the only real disagreement is over the
 paternal relatives' access to the child.  Mrs. von Albrecht objects to
 mandated visitation by the paternal relatives, believing that it would be in
 the best interest of the child to allow visitation at her discretion.  While
 Mrs. Turull originally filed for guardianship, her attorney conceded at oral
 argument that visitation, as opposed to custody of the child, is the
 underlying concern.  The superior court and the Bermuda Supreme Court both
 acknowledged this fact.  Mrs. Turull's actions in the Bermuda proceedings
 verify this -- she withdrew her application for adoption, and the child's
 paternal aunt and uncle were substituted as adoption applicants in her
 place.  On appeal here, Mrs. Turull concedes that the UCCJA applies and that
 Bermuda is a "state" for purposes of the Act, but argues that Vermont has
 continuing jurisdiction over the custody and visitation issues.
      We agree with the superior court that the Chittenden Probate Court had
 jurisdiction to enter the initial guardianship petition giving Mrs. von
 Albrecht temporary custody of Anabelle under 14 V.S.A. { 2645(1) ("the pro-
 bate court may appoint a guardian of the minor . . . [w]hen the minor has no
 parent living authorized to act as guardian"), and under the UCCJA, 15 V.S.A
 { 1032(a)(3)(B) (jurisdiction conferred to initially determine child custody
 when "necessary in an emergency to protect the child because he . . . is .
 . . neglected").  See In re B.J.C., 149 Vt. 196, 198, 540 A.2d 1047, 1049
 (1988) (emergency gives rise to temporary custody order only under UCCJA).
 The emergency guardianship order gave Mrs. von Albrecht authority to take
 custody of Anabelle, but ceased to have any effect once its purpose was
 accomplished.  Jurisdiction to determine future custody and visitation
 issues was no longer in any Vermont court, and the probate court erroneously
 failed to apply the UCCJA standards in its January 1990 order.
      The UCCJA is intended to eliminate the adverse consequences of multi-
 jurisdictional disputes over custody and visitation of children.  The Act
 seeks to avoid shifting jurisdiction over children from state to state by
 requiring that the custody decree be "rendered in that state which can best
 decide the case in the interest of the child."  Public Law No. 136, Sec. 1
 (1979 Adj. Sess.) (general purposes of UCCJA).  The Act achieves this goal
 by encouraging courts to communicate with one another and by limiting
 custody jurisdiction to a child's home state or, if no home state exists, to
 the state with the strongest contacts with the child and the child's family.
 Id. Sec. 1(3),(8); see also Shute v. Shute, No. 89-449 (Vt. April 3, 1992)
 (if no "home state" exists, court may look to other UCCJA factors in
 deciding whether to assert or decline jurisdiction).   Because the UCCJA is
 not a reciprocal law, it "can be put into full operation by each individual
 state regardless of enactment of other states."  Prefatory Note to the Child
 Custody Jurisdiction Act, 9 Uniform Laws Annotated at 118 (1988).
      An examination of the provisions of the UCCJA shows that the inflex-
 ible approach to jurisdiction urged by appellant is contrary to the goals of
 the UCCJA.  A consistent theme in the Act is the emphasis on the child's
 connections to the state taking jurisdiction.  The facts of this case show
 that Vermont could not retain continuing jurisdiction under the UCCJA
 because Vermont is not the "home state."  15 V.S.A. { 1032(a)(1)(A) (state
 may take jurisdiction if it is child's "home state" at the commencement of
 the proceeding).  Anabelle's age of five months at the time of the deaths of
 her parents and the fact that she was born in Bermuda precluded Vermont from
 being her "home state."  See id. { 1031(5) ("home state" is the state in
 which the child lived for six consecutive months, and in the case of a child
 under six months old, is the state in which the child lived from birth).
 After her birth and a month in Bermuda, Anabelle was taken to New York for a
 short period.  When she was one and one-half months old, her family moved to
 Burlington.  Because she was not yet six months old at the time Mrs. von
 Albrecht obtained guardianship and brought her to Bermuda, she had not lived
 in any one state long enough to satisfy the "home state" test.  Nor had she
 lived in any one state "from birth" to the commencement of proceedings.  In
 situations where the facts cannot satisfy the UCCJA "home state" test,
 courts find that the child has no home state.  See, e.g., In re Marriage of
 Hubbard, 315 N.W.2d 75, 79 (Iowa 1982) (children had no home state under
 UCCJA because mother and children did not live in "any one state" for six
 consecutive months prior to the commencement of the proceeding).
      No other UCCJA factors support continuing Vermont jurisdiction.
 Anabelle had no significant connections with Vermont, 15 V.S.A. { 1032(a)(2)
 (A) (court may take jurisdiction if child and "at least one contestant have
 a "significant connection" with state), and Vermont did not have available
 "substantial evidence concerning the child's present or future care,
 protection, training, and personal relationships."  Id. { 1032(a)(2)(B).
 Excluding the few months that Anabelle resided in Vermont, she had no ties
 here.  On the other hand, at the time of the superior court order, she had
 been living in Bermuda for approximately thirteen months.  Although Mrs. von
 Albrecht owned a vacation home in Stratton, Vermont, and property in
 Dorset, Vermont, Bermuda was the only forum that had access to evidence of
 the child's best interests.  See In re B.R.F., 669 S.W.2d 240, 246 (Mo. Ct.
 App. 1984) (because grandmother seeking custody lived in Indiana, not New
 Jersey, the state of the child's residence, that state presented the best
 "opportunity to investigate and validate facts" about her ability to care
 for child, and therefore New Jersey could not satisfy "home state" require-
 ment).  Furthermore, Bermuda did not decline to exercise jurisdiction.  See
 15 V.S.A. { 1032(a)(4) (state has jurisdiction where it "appears that no
 other state would have jurisdiction . . . or another state has declined to
 exercise jurisdiction").  Mrs. Turull understandably made no claim of juris-
 diction in the state of her residence, Connecticut.  Anabelle had never
 lived in Connecticut nor had her parents since her birth.
        Most importantly, when the superior court dismissed the action, Vermont
 was an inconvenient forum according to the provisions of 15 V.S.A. 
 { 1036. (FN1) By January 12, 1990, Bermuda had a closer connection with 
 Anabelle and the contestants, and substantial evidence concerning her 
 "present or future
 care, protection, training and personal relationships" was readily available
 there.  15 V.S.A. { 1036(c)(2), (3).  The von Albrechts, with whom she had
 been living during this time, were in Bermuda, as was ample information
 about her physical and psychological health and development.  Bermuda's
 social service agencies had, over a number of months, investigated the von
 Albrechts, various members of the Turull family, and physicians who had
 cared for Anabelle in and outside Bermuda.  The guardian ad litem observed
 the home situation of the von Albrechts, reviewed their character, and
 investigated Anabelle's ability to interact with various members of her
 family and the general community.  It would have been impossible for the
 Vermont courts to equal the monitoring that occurred in Bermuda.  As between
 Connecticut, Vermont and Bermuda, the latter was the most appropriate forum
 on the date of the superior court order deferring jurisdiction.  Contrary to
 Mrs. Turull's argument, the Bermuda court found that Anabelle's presence in
 Bermuda and the subsequent establishment of ties there did not arise because
 Anabelle was wrongfully removed from Vermont.  We agree.
      Mrs. Turull argues that Vermont Rule of Probate Procedure 3(d) ("a
 probate proceeding involving a guardianship shall . . . continue until the
 guardianship is closed"), as well as other sources which outline basic
 jurisdictional principles, mandates Vermont jurisdiction over this custody
 determination.  This argument disregards the UCCJA, which requires, regard-
 less of jurisdictional rules to the contrary, that the interests of a child
 involved in a multi-jurisdictional custody dispute are to be addressed in
 the forum with the strongest ties to the child either by virtue of home
 state jurisdiction, or if no home state exists, according to the other UCCJA
 factors.
      Mrs. Turull also contends that Vermont retains jurisdiction because it
 is the state in which the guardianship petitions were originally filed.  She
 cites Peloso v. Botkin, 144 Vt. 461, 464, 479 A.2d 156, 158 (1984) and Duval
 v. Duval, 149 Vt. 506, 513, 546 A.2d 1357, 1362 (1988), for the proposition
 that the "criteria supporting jurisdiction under the UCCJA must be present
 at the time of the initiation of the particular custody proceeding, and
 whatever occurs after that time is irrelevant to the initial inquiry into
 jurisdiction."  The use of this language misconstrues the holdings in these
 cases, which are consistent with our conclusion here.  In both cases,
 children born in Vermont were taken out of state for over a year before
 being returned to Vermont where custody proceedings began almost immedi-
 ately.  Duval, 149 Vt. at 508, 546 A.2d  at 1359; Botkin, 144 Vt. at 462-63,
 479 A.2d  at 157.  In both cases, this Court stated that determination of
 jurisdiction could not be based solely on speculation about the reestablish-
 ment of ties to Vermont at some time in the future.  See also Kioukis v.
 Kioukis, 185 Conn. 249, 256, 440 A.2d 894, 897-98 (1981) ("first state's
 exclusive jurisdiction . . . does not continue indefinitely [and] [a]t some
 point the child's connections with the first state become too tenuous to
 satisfy the demands" of the UCCJA).
      In this case, the superior court based its decision on the dearth of
 evidence available in Vermont on the child's best interests and the ample
 evidence already in existence in Bermuda.  This analysis is precisely what
 Botkin and Duval promote, and their holdings cannot be used to justify a
 blind application of the principle that continuing jurisdiction exists
 merely because Vermont was the state that was the "first in time."  See L.F.
 v. G.W.F., 183 N.J. Super. 195, 202, 443 A.2d 751, 754 (1982) ("common sense
 is offended by the concept that simply because a case is originally started
 in this state, all subsequent proceedings between the parties involving the
 original subject matter should be regarded as commenced here").
      Finally, Mrs. Turull argues that the superior court's failure to
 communicate with Bermuda as required by the provisions of the UCCJA, justi-
 fies reversal and remand.  See 15 V.S.A. { 1035(c) ("If the court is
 informed during the course of the proceeding that a proceeding concerning
 the custody of the child was pending in another state . . . it shall stay
 the proceeding and communicate with the court . . . to the end that the
 issue may be litigated in the more appropriate forum . . . ."); id. {
 1036(d) ("before determining whether to decline or retain jurisdiction, the
 court may communicate with a court of another state . . . with a view to
 assuring that jurisdiction will be exercised by the more appropriate court .
 . . .").  We fail to see the practical harm to Mrs. Turull by a failure of
 the superior court to communicate with the Bermuda court.  An inquiry into
 the appropriate forum, based on information adduced through cross-juris-
 dictional communication, would most likely have resulted in Vermont's
 deferral to the jurisdiction of Bermuda.  A failure to comply strictly with
 the communication provision does not require reversal.  See Duval, 149 Vt.
 at 515, 546 A.2d  at 1363 ("most courts that have examined this 'failure to
 communicate' problem have found that the omission does not necessarily merit
 reversal on appeal, because such failures can be mere technical defaults not
 striking at the central purpose of the UCCJA").  In any event, the Vermont-
 appointed guardian ad litem was in communication with her counterpart in
 Bermuda, and the Vermont courts obtained information on Anabelle's living
 situation by virtue of this correspondence.
      Affirmed, with the further entry that the probate order dated January
 12, 1990, is vacated in its entirety.


                                         FOR THE COURT:



                                         _____________________________
                                         Associate Justice






FN1.        15 V.S.A. {1036(c) lists the factors a court shall consider to
 determine if it is in the best interest of the child that another state
 assume jurisdiction:
     (1)  if another state is or recently was the child's home state;
     (2)  if another state has a closer connection with the child and his
     family or with the child and one or more of the contestants;
     (3)  if substantial evidence concerning the child's present or
     future care, protection, training, and personal relationships is more
     readily available in another state;
     (4)  if the parties have agreed on another forum which is no less
     appropriate; and
     (5)  if the exercise of jurisdiction by a court of this state
     would contravene any of the purposes of this chapter.