In re N.H., Juvenile

In re N.H., Juvenile (2005-126); 179 Vt. 537; 889 A.2d 727

2005 VT 118

[Filed 28-Sept-2005]

                                 ENTRY ORDER

                                 2005 VT 118

                      SUPREME COURT DOCKET NO. 2005-126

                            SEPTEMBER TERM, 2005
  	
  In re N.H., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
       	                               }	Chittenden Family Court
                                       }	
  	                               }
                                       }	DOCKET NO. 292-6-04 Cnjv

                                                Trial Judge: Dean B. Pineles

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


       ¶  1.  Mother appeals the family court's order terminating her
  parental rights (TPR) with respect to her fifth child, N.H.  She argues
  that the court lacked subject matter jurisdiction over the child.  We
  affirm.

       ¶  2.  Mother's parental rights with respect to her four previous
  children had been terminated by courts in three different states.  Mother's
  first child was born in July 1999.  After a Vermont substantiation that
  mother had fractured the child's arm and otherwise physically abused the
  child, proceedings ensued and eventually led to a termination order.  Prior
  to the issuance of that order, mother had left Vermont for Rhode Island,
  where her second child was born in July 2000.  That child was placed in
  state custody while mother returned to Vermont and entered a residential
  program.  Before the child could be reunited with mother, mother left the
  residential program prematurely.  The Rhode Island court eventually
  terminated mother's parental rights to her second child.  Mother's third
  child was born in August 2001.  A Virginia court placed the infant in state
  custody three weeks after her birth due to the parents' medical neglect. 
  Parental rights were terminated when neither parent engaged in the services
  provided.  A Virginia court also placed mother's fourth child in state
  custody immediately after her birth in June 2003.  After two visits, the
  parents left Virginia, and their parental rights were eventually
  terminated.
   
       ¶  3.  In the spring of 2004, while mother was pregnant with N.H.,
  mother and father were living in Burlington, Vermont.  On June 3, 2004,
  based on its awareness of the aforementioned history, the Department for
  Families and Children (DCF) filed a motion for a pick-up order and a
  petition alleging that N.H. was a child in need of care and supervision
  (CHINS).  The family court issued a detention order the next day. 
  Unbeknownst to DCF, however, the parents had left for Florida a couple of
  weeks earlier.  N.H. was born in Florida on June 10, 2004.  On July 24,
  2004, at the request of DCF and its Florida counterpart, a Florida court
  entered a shelter order for N.H.  Two days later, DCF filed a request for
  an emergency hearing with the Chittenden Family Court.  DCF brought N.H. to
  Vermont on July 29, 2004.  The following day, the family court held an
  emergency hearing and placed N.H. in DCF's temporary custody.  At an August
  25, 2004, status conference, both parents were represented by counsel and
  participated via telephone.  Father claimed that the parents had not fled
  Vermont to avoid CHINS proceedings, but rather had gone to Florida for only
  a two-week visit.  Despite being notified, the parents did not take part in
  the next status conference in October 2004.  Nor did they participate in
  the CHINS merits hearing held on November 23, 2004, notwithstanding DCF's
  efforts to contact them.  Following the hearing, N.H. was adjudicated
  CHINS.

       ¶  4.  Shortly after the CHINS adjudication, DCF filed a TPR
  petition.  The petition was considered at the initial disposition hearing
  held on January 25, 2005.  The parents did not appear, but their attorney
  suggested that the court lacked subject matter jurisdiction over N.H.  The
  court indicated that it would grant DCF's petition subject to briefing and
  its ruling on the jurisdictional question.  On January 27, 2005, the
  Florida court declined to exercise jurisdiction over N.H.  On February 10,
  2005, the family court assumed jurisdiction under 15 V.S.A. § 1032(a)(4)
  (no other state has jurisdiction under relevant criteria or another state
  has declined jurisdiction).  Six days later, the court entered a written
  decision terminating the parents' rights to N.H.  Mother appeals, arguing
  that the family court lacked subject matter jurisdiction over N.H. because
  none of the jurisdictional requirements of the Uniform Child Custody
  Jurisdiction Act (UCCJA) were satisfied at the time DCF filed its initial
  CHINS petition or its later motion for an emergency hearing.

       ¶  5.  In arguing that the court lacked jurisdiction over N.H.,
  mother reasons as follows.  Jurisdictional requirements must be satisfied
  at the time a proceeding is commenced.  See Columb v. Columb, 161 Vt. 103,
  110, 633 A.2d 689, 693 (1993) ("To find jurisdiction, we must find that the
  circumstances required by the UCCJA . . . are present at the commencement
  of the custody proceeding.").  Because DCF sought termination at the
  initial disposition hearing, the TPR petition did not commence a new
  proceeding.  Cf. In re B.C., 169 Vt. 1, 5, 726 A.2d 45, 49 (1999) ("Unless
  termination of parental rights is sought at the initial disposition
  hearing, a TPR petition commences a new proceeding to modify the previous
  disposition order based on changed circumstances.").  DCF filed its CHINS
  petition on June 3, 2004, before N.H. was born, when he was a fetus and not
  a "child" under the Juvenile Proceedings Act.  See 33 V.S.A. § 5503(a)
  ("The juvenile court shall have exclusive jurisdiction over all proceedings
  concerning any child . . . who is alleged to be . . . a child in need of
  care or supervision . . . .").  According to mother, UCCJA § 1032(a)
  jurisdictional criteria remained unsatisfied when DCF filed its subsequent
  petition for emergency hearing on July 26, 2004, after N.H.'s birth, but
  when N.H. was still in Florida.  
        
       ¶  6.  We do not find this reasoning persuasive.  Commencement of a
  CHINS proceeding prior to a child's birth does not necessarily deprive the
  family court of subject matter jurisdiction.  In In re J.M., 170 Vt. 587,
  588-89, 749 A.2d 17, 19 (2000) (mem.), the mother argued, as here, that the
  family court lacked subject matter jurisdiction because the CHINS petition
  was filed and a detention order was issued before the birth of her child. 
  We concluded that any error was harmless because (1) two days after the
  child was born, the court issued a new emergency detention order; and (2)
  the merits and disposition hearings occurred later.  Id.  Likewise, we
  conclude that any initial jurisdictional error was harmless in this case. 
  After N.H.'s birth, and upon discovering that the parents had left the
  state, DCF contacted its counterpart agency in Florida and obtained a
  Florida shelter order.  Two days later, DCF sought an emergency detention
  hearing in Vermont.  First CHINS, and eventually TPR, proceedings were held
  in the Chittenden Family Court.  It was only at the delayed disposition
  hearing that the parents' attorney first suggested that the parents were
  challenging the Vermont family court's jurisdiction over N.H.  Shortly
  thereafter, Florida declined to exercise jurisdiction over the matter in
  favor of Vermont jurisdiction, based on the child's best interest and
  Vermont's "closer connection with the child and his family."  Therefore,
  Vermont's UCCJA jurisdictional requirements were satisfied because "another
  state . . . declined to exercise jurisdiction on the ground that this state
  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." 
  15 V.S.A. § 1032(a)(4).  

       ¶  7.  We see no point in reversing the family court's decision just
  to have DCF file a new TPR petition following the Florida court's
  declination of jurisdiction.  Among the general purposes of the UCCJA are
  to avoid jurisdictional conflict with courts of other states and to
  discourage continuing controversies over child custody in the interest of
  more stability and security for the child.  See Title 15, Chapter 19,
  history of Uniform Child Custody Jurisdiction Act.  Neither these purposes
  nor the best interests of N.H. would be served by remanding the matter for
  further pro forma proceedings.  Cf. In re D.T., 170 Vt. 148, 154, 743 A.2d 1077, 1082 (1999) ("remand would amount to nothing more than an empty
  formality").  Notably, the UCCJA does not directly grant subject matter
  jurisdiction over a general category of cases, but rather imposes
  territorial limitations on the court's exercise of its jurisdiction.  B.C.,
  169 Vt. at 7, 726 A.2d  at 50.  Hence, the family court has subject matter
  jurisdiction over the general type of controversy presented by this case,
  and none of its orders were void as the result of any irregularities in its
  assumption of jurisdiction under the UCCJA.  See id.  Under these
  circumstances, as in J.M., 170 Vt. at 588-89, 749 A.2d  at 19, we reject
  mother's argument that the Chittenden Family Court lacked subject matter
  jurisdiction over N.H.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice