Jackson v. Hendricks

Jackson v. Hendricks (2004-239); 179 Vt. 549; 893 A.2d 292

2005 VT 113

[Filed 24-Oct-2005]

                                 ENTRY ORDER

                                 2005 VT 113

                      SUPREME COURT DOCKET NO. 2004-239

                              MARCH TERM, 2005

  Lakeisha Jackson and Brenda Edwards	}	APPEALED FROM:
                                        }
       v.	                        }	Windham Family Court
                                        }	
  Thomas R. Hendricks, Jr.	        }
                                        }	DOCKET NO. 120-4-99 Wmdm

                                                Trial Judge: Katherine A. Hayes

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Lakeisha Jackson and Brenda Edwards appeal from a family
  court order that awarded  Thomas Hendricks legal and physical parental
  rights and responsibilities for Elijah Hendricks.  Appellants contend that:
  (1) the Vermont family court lacks jurisdiction over this matter because
  the Florida courts are a more appropriate forum; and (2) even if it has
  jurisdiction, the family court has no authority to terminate Brenda
  Edwards' guardianship of the child, which was instituted by order of the
  Connecticut probate court.  We reject these arguments and affirm the family
  court.

       ¶  2.  The family court made the following findings.  Lakeisha Jackson
  gave birth to Elijah in February 1997.  During the first year of the
  child's life, Jackson lived with her mother, Brenda Edwards, in
  Connecticut.  In February 1998, Jackson decided to enlist in the Navy, and
  the Connecticut probate court awarded Edwards legal guardianship of Elijah
  with Jackson's agreement.  At that time, the Connecticut court stated that
  it had made no determination regarding the rights of Thomas Hendricks-who
  claimed to be Elijah's father and opposed the guardianship-because
  Hendricks had not established paternity.  In July 1999, however, guardian
  and mother sought an order in the Vermont family court obligating
  Hendricks, a resident of Vermont, to pay child support to guardian.  As
  part of those proceedings, mother and guardian acknowledged Hendricks'
  paternity, and the court issued orders establishing Hendricks' parentage
  and requiring to him to pay child support.

       ¶  3.  In August 2002, guardian moved to Florida and left Elijah
  with mother, who was stationed in Virginia.  In November of that year, the
  Navy reassigned mother to Florida, and Elijah lived with her in Florida for
  the next month.  In December, mother learned that she was scheduled for sea
  duty, and guardian was unable to care for Elijah as she settled into a new
  home and job.  Given these circumstances, guardian and mother decided to
  ask father to take care of Elijah for the remainder of the school year. 
  Father picked up Elijah on December 31, 2002, and took him to his home in
  Vermont.
   
       ¶  4.  On January 9, 2003, father filed a motion in the Vermont
  family court seeking sole legal and physical parental rights and
  responsibilities for Elijah.  In his supporting affidavit,  father
  acknowledged that Elijah had been with him for only a few days, and he
  recounted the boy's recent movement from Virginia to Florida.  He went on
  to state that mother was shipping out with the Navy  and said that she
  agreed Elijah should live with him.  Father advised the court that he
  needed a custody order to enroll Elijah in school, but he made no mention
  of Edwards' role as Elijah's legal guardian.  He simultaneously moved the
  court to modify the existing child support order.  On January 22, the court
  awarded father temporary legal and physical parental rights and
  responsibilities, and scheduled a case manager's conference for March 11. 
  At the conference, the case manager issued an entry stating: "Plaintiff
  shall file objection within 30 days of service of this order if she
  requests hearing.  If no objection filed, order shall become final."  On
  May 27, the order became final.  At some point after mother learned of
  father's intentions, she contacted the Florida courts and was told she
  needed to pursue a remedy in Vermont.

       ¶  5.  On August 1, guardian filed a motion to modify or reconsider
  the order awarding father legal and physical parental rights and
  responsibilities.  She argued that the Vermont family court did not have
  jurisdiction to determine Elijah's custody because he had not lived in the
  state for six months prior to father's motion.  She also claimed that
  father was refusing to allow mother to have contact with Elijah, and
  expressed concerns about father's ability to care for the child. 
  Appellants did not ask the court to award mother parental rights and
  responsibilities, but instead sought to reestablish Edwards' guardianship
  of Elijah.  The court scheduled evidentiary hearings for December 3, 2003
  and February 4, 2004.

       ¶  6.  After the hearings, the court found that mother and guardian
  had not received written notice of father's motions until May 24, 2003 - just
  three days before the custody order became final.  The court noted that
  mother participated by telephone in the case manager's conference of March
  11, but found that mother was not aware that father was in the process of
  seeking sole legal and physical parental rights and responsibilities.  On
  May 20, guardian participated by telephone in a second case manager's
  conference, during which she learned of father's intentions for the first
  time.  Guardian and mother then received written notice on May 24.  Given
  the lack of notice, and father's failure to identify guardian upon filing
  his motion, the court decided to treat its order granting father custody as
  temporary, and treated guardian's later motions as objections to that
  status.

       ¶  7.  The court then concluded that it had jurisdiction to modify
  parental rights and responsibilities under the Uniform Child Custody
  Jurisdiction Act (UCCJA), 15 V.S.A. § 1032(a)(4),  and the Parental
  Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A (1994 & Supp. 
  2005).  The court recognized that Vermont was not Elijah's "home state" at
  the time father filed his motion, but it found that, due to mother's recent
  relocations, Elijah did not have a home state as defined in the UCCJA.  See
  15 V.S.A. § 1031(5) (defining child's "home state" as the one in which the
  child, immediately preceding the relevant time period, lived with his
  parents, a parent, or a person acting as a parent, for at least six
  consecutive months).  Given these circumstances, the court found that it
  was in Elijah's best interest for it to assume jurisdiction pursuant to 15
  V.S.A § 1032(a)(4).  It further found that its assumption of jurisdiction
  was consistent with § 1738A(c) of the PKPA.  The court then made findings
  of fact and reviewed Elijah's circumstances relative to the factors that
  the Legislature has established for custody determinations, see 15 V.S.A. §
  665(b), and awarded father legal and physical parental rights and
  responsibilities.  This appeal followed. 
          
       ¶  8.  Appellants argue that the Vermont court lacked jurisdiction
  to terminate the Connecticut order that appointed Brenda Edwards as
  Elijah's legal guardian.  They maintain that only a Connecticut probate
  court has that authority.  According to appellants, even if this Court
  concludes that the Vermont court did have jurisdiction to terminate the
  guardianship order, then Florida, rather than Vermont, was the more
  appropriate forum for any custody determination because the child's mother
  and guardian resided there.  Appellants maintain that there is insufficient
  evidence to support the family court's finding that Florida had declined
  jurisdiction over the case.  As discussed below, we find these arguments
  without merit. 

       ¶  9.  As this case involves the Vermont family court's modification
  of an existing child custody decree-the Connecticut order that awarded
  legal guardianship of Elijah to Edwards - we turn first to the PKPA. (FN1) 
  See Matthews v. Riley, 162 Vt. 401, 404, 649 A.2d 231, 235 (1994)
  ("[J]urisdiction over interstate enforcement and modification of child
  custody decrees is governed by the Parental Kidnapping Prevention Act
  (PKPA), 28 U.S.C. § 1738A.").  With certain exceptions, a state must
  enforce the custody orders of other states when they are made consistently
  with the requirements of the PKPA.  28 U.S.C. § 1738A(a).  A state may
  modify such orders if "(1) it has jurisdiction to make such a child custody
  determination; and (2) the court of the other State no longer has
  jurisdiction, or it has declined to exercise such jurisdiction to modify
  such determination."  28 U.S.C. § 1738A(f)(1)-(2).  The UCCJA similarly
  provides that the Vermont family court may modify the order of another
  state when "(1) it appears . . . that the court which rendered the decree
  does not now have jurisdiction under jurisdictional prerequisites
  substantially in accordance with [the UCCJA] or has declined jurisdiction
  to modify the decree; and (2) the court of this state has jurisdiction." 
  15 V.S.A. § 1042(a)(1)-(2).  Thus, to determine if the Vermont family court
  had the authority to modify the Connecticut guardianship order, we must
  first examine if the Vermont family court had jurisdiction over this
  dispute.                                                                  
   
       ¶  10.  Under the UCCJA, the Vermont family court has jurisdiction to
  make a child custody determination by initial or modification decree if: 
  (1) Vermont is the child's home state; (2) it is in the child's best
  interests for Vermont to assume jurisdiction because the child and his
  parents, or the child and one of the contestants, have a significant
  connection to the state and there is substantial evidence available in this
  state concerning the child's present or future care, protection, training,
  and personal relationships; or (3) if the child is physically present in
  the state and he or she has been abandoned or is in need of emergency
  assistance due to neglect or abuse.  Id. § 1032(a)(1)- (3).  The Vermont
  family court also has jurisdiction to make a child custody determination by
  initial or modification decree when

    it appears that no other state would have jurisdiction under
    prerequisites substantially in accordance with subdivisions (1),
    (2), or (3) of this subsection, or another state has declined to
    exercise jurisdiction on the ground that [Vermont] is the more
    appropriate forum to determine the custody of the child, and it is
    in the best interest of the child that this court assume
    jurisdiction.  

  Id. § 1032(a)(4).   

       ¶  11.  In this case, the family court found that Elijah did not have
  a home state under 15 V.S.A. § 1031(5) at the time that father filed his
  motion.  The court also found that Florida had apparently relinquished any
  claim of jurisdiction over the case.  Appellants contend that the evidence
  does not support this latter finding.  We need not resolve this dispute to
  decide this case because it is  apparent from the record that Florida was
  not the child's home state.  At the time that father filed his motion,
  Elijah and his mother had spent just over a month in Florida.  Prior to
  that time, Elijah had resided in Virginia for three months, and, before
  that, he had lived in Connecticut for five years.  No Florida court had
  exercised jurisdiction over any part of Elijah's case, and Elijah was not
  present in Florida.  Moreover, as the family court found, no party asserted
  that Connecticut should have taken jurisdiction of this case, and, indeed,
  no party resided in Connecticut at the time of the filing.  Thus, although
  the family court erred in finding that Florida could have exercised
  jurisdiction, the Vermont court's exercise of jurisdiction was nonetheless
  appropriate under 15 V.S.A. § 1032(a)(4) because no other state had
  jurisdiction over Elijah, and it was in the child's best interests for
  Vermont to assume jurisdiction.  See 1 A. Haralambie, Handling Child
  Custody, Abuse and Adoption Cases § 2.06, at 22 (2d ed. 1993) ("The most
  typical circumstances under which a state exercises this type of
  jurisdiction is where the parties have moved frequently and have recently
  moved to different states."). 
        
       ¶  12.  Accordingly, the Vermont family court also had jurisdiction
  to modify the Connecticut custody order, which we assume arguendo was
  issued in compliance with the requirements of the PKPA.  See 28 U.S.C. §
  1738A(f) (authorizing court to modify custody order made by court of
  another state).  Under the PKPA, Connecticut no longer had jurisdiction
  over this matter.  Connecticut was not the child's home state, none of the
  parties resided there, and nothing in the record suggested that, at the
  time of the filing, the parties had a "significant connection" to that
  state or that substantial evidence was available in that state concerning
  Elijah's present or future care, protection, training, and personal
  relationships.  Id. §§ 1738A(c), (f)(2).  We reject appellants' assertion
  that Connecticut maintains "continuing jurisdiction" by virtue of the
  guardianship order.  To establish "continuing jurisdiction" under the PKPA
  based on the issuance of a custody order, a state must meet the
  jurisdictional criteria described in 28 U.S.C. § 1738A(c), and the child or
  one of the contestants must reside in the state.  28 U.S.C. § 1738A(d).  As
  discussed above, none of these criteria is satisfied. 

       ¶  13.  We addressed an analogous situation in In re Cifarelli, 158
  Vt. 249, 611 A.2d 394 (1992).  In that case, a child, who had been living
  in Vermont, was placed in temporary state custody after her parents died. 
  The child's maternal grandmother obtained a guardianship appointment from a
  Vermont probate court, and returned with the child to her home in Bermuda,
  where she commenced adoption proceedings.  During this time, the child's
  paternal grandmother also filed a guardianship petition in Vermont probate
  court.  The maternal grandmother moved to dismiss the petition for lack of
  subject matter jurisdiction.  The Vermont probate court concluded that the
  UCCJA did not apply, and it issued several orders relating to custody and
  visitation.  On appeal, the paternal grandmother conceded that the UCCJA
  applied and that Bermuda was a "state" for purposes of the Act, but she
  asserted that Vermont had continuing jurisdiction by virtue of the
  guardianship order.  We rejected this argument.  We reasoned that although
  the probate court had jurisdiction to issue the initial guardianship
  petition under 14 V.S.A. § 2645(1) and under the UCCJA, 15 V.S.A. §
  1032(a)(3), the emergency guardianship order ceased to have any effect once
  its purpose was accomplished.  In re Cifarelli, 158 Vt. at 252, 611 A.2d  at
  396.  At that point, we stated, "[j]urisdiction to determine future custody
  and visitation issues was no longer in any Vermont court."  Id.  

       ¶  14.  As we explained in that case, 

    [t]he 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."  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. at 253, 611 A.2d  at 396-97 (citation omitted).  We concluded that
  Vermont could not retain continuing jurisdiction under the UCCJA because
  Vermont was not the child's "home state," and,  in fact, the child had no
  home state.  Id. at 253-54, 611 A.2d  at 397.  No other UCCJA factors
  supported continuing Vermont jurisdiction.  Id. at 254-55, 611 A.2d  at
  397-98.

       ¶  15.  Significantly, the paternal grandmother argued that Vermont
  Rule of Probate Procedure 3(d), which provides that "a probate proceeding
  involving a guardianship shall . . . continue until the guardianship is
  closed," as well as other sources that outlined basic jurisdictional
  principles, mandated that Vermont assume jurisdiction over the custody
  determination.  We rejected this argument, finding that it disregarded the
  UCCJA, 

    which requires, regardless of jurisdictional rules to the
    contrary, that the interests of a child involved in a
    multi-jurisdictional 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.  

  Id. at 255-56, 611 A.2d  at 398.  We similarly rejected the argument that
  Vermont retained jurisdiction because it was the state in which the
  guardianship petitions had been originally filed.  Id. at 256, 611 A.2d  at
  398 (citing Kioukis v. Kioukis, 440 A.2d 894, 897-98 (Conn. 1981) ("The
  first state's exclusive jurisdiction . . . does not continue indefinitely. 
  At some point the child's connections with the first state become too
  tenuous to satisfy the demands of [the UCCJA].")).  As we explained, given
  the ample evidence that existed in Bermuda concerning the child's best
  interests, Vermont case law could not be interpreted "to justify a blind
  application of the principle that continuing jurisdiction exists merely
  because Vermont was the state that was the 'first in time.'"  Id. at 256,
  611 A.2d  at 398-99 (citing L.F. v. G.W.F., 443 A.2d 751, 754 (N.J. Super.
  1982) ("Our 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.")).   

       ¶  16.  We are presented with the same situation here, albeit
  reversed.  Connecticut does not retain jurisdiction forever over all
  matters concerning these parties.  Its connection to the child has become
  too attenuated, and it is not in the child's best interests for that state
  to assume jurisdiction of this case.  See Columb v. Columb, 161 Vt. 103,
  112, 633 A.2d 689, 694 (1993) (recognizing that if child moves from place
  to place, proper forum to determine custody will change as moves are made,
  and the fact that the Vermont court did not have jurisdiction at one time
  should not foreclose that court from taking it when circumstances change;
  "[i]ndeed, failure to take jurisdiction will undermine the statutory
  purpose to adjudicate a custody dispute in the court best suited to do
  so"); see also  Commissioner's Note, Unif. Child Custody Jurisdiction Act §
  14, 9 U.L.A. 580 (1999) (explaining that the fact that court had previously
  considered a case may be one factor favoring its continued jurisdiction but
  if all the persons involved have moved away or contact with the state has
  otherwise become slight, modification jurisdiction shifts elsewhere). 
  Under the PKPA, and consistent with the purposes of that Act and the UCCJA,
  Vermont had jurisdiction to modify the Connecticut order.

       ¶  17.  Having established that the family court had jurisdiction, we
  turn to its discretionary decision to modify the voluntary guardianship
  order and grant father custody of Elijah.  Although the pre-existing order
  was a guardianship order, the family court, rather than the probate court,
  had jurisdiction over this matter.  See 4 V.S.A. § 454(7)
  ("[N]otwithstanding any other provision of law to the contrary, the family
  court shall have exclusive jurisdiction to hear and dispose of . . . [a]ll
  uniform child custody proceedings filed pursuant to chapter 19 of Title
  15.").  In Boisvert v. Harrington, 173 Vt. 285, 288, 796 A.2d 1102, 1105
  (2002), we acknowledged that no specific statute provides guidance for
  termination of a guardianship created under 14 V.S.A. § 2654(4).  We
  concluded, however, that such a termination requires a finding, after a
  hearing, that the circumstances which precipitated the transfer of custody
  no longer pertain.  Boisvert, 173 Vt. at 289, 796 A.2d  at 1106.  As with
  all custody determinations, the termination of a guardianship order must be
  in a child's best interests and the law presumes that those interests are
  best served by parental custody.  Id. at 291, 796 A.2d  at 1107.  The same
  considerations must apply when the family court determines whether to
  terminate a guardianship order instituted in another state.  
        
       ¶  18.  In this case, the family court made extensive findings
  regarding Elijah's best interests relative to the factors identified in 15
  V.S.A. § 665(b).  While it recognized that both father and guardian could
  provide a safe and supportive home, the court found that Elijah had
  developed strong relationships in Vermont, and it further acknowledged the
  presumption in favor of parental custody.  Given these findings, the court
  awarded father legal and physical parental rights and responsibilities, but
  granted mother and guardian liberal visitation rights.  The family court
  has broad discretion in determining a child's best interests and rendering
  a custody determination,  Payrits v. Payrits, 171 Vt. 50, 52-53, 757 A.2d 469, 472 (2000), and we find no abuse of discretion here.  We therefore
  affirm the family court's decision.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned


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                                  Footnotes


FN1.  We consider the Connecticut guardianship order to be a "custody
  determination" within the meaning of the PKPA.  The PKPA defines a "custody
  determination" as "a judgment, decree, or other order of a court providing
  for the custody of a child, and includes permanent and temporary orders,
  and initial orders and modifications," 28 U.S.C. § 1738A(b)(3), and a
  "modification" as "a custody or visitation determination which modifies,
  replaces, supersedes, or otherwise is made subsequent to, a prior custody
  or visitation determination concerning the same child, whether made by the
  same court or not," id. § 1738A(b)(5).  See also 15 V.S.A. § 1031(4)
  (defining "custody decree" as "a custody determination contained in a
  judicial decree or order made in a custody proceeding"); In re Cifarelli,
  158 Vt. 249, 253-54, 611 A.2d 394, 397 (1992) (applying UCCJA to determine
  if Vermont retained jurisdiction over custody dispute by virtue of
  guardianship orders issued by Vermont probate court); In re Pima Cty.
  Juvenile Action No. J-78632, 711 P.2d 1200, 1206 (Ariz. Ct. App. 1985)
  (holding that Arkansas guardianship order was "custody determination" for
  purposes of applicability of the PKPA), affirmed in part, and vacated in
  part on other grounds, 712 P.2d 431 (Ariz. 1986) (en banc); Elam v. Elam,
  832 S.W.2d 508, 510 (Ark. Ct. App. 1992) (holding that Arkansas court, in
  course of divorce proceeding, was required to recognize prior Tennessee
  order granting legal guardianship of child to his grandparents, pursuant to
  the Arkansas version of the UCCJA, particularly where Tennessee court
  continued to have jurisdiction in the matter).