In re R.W. and N.W.

2011 VT 124

In re R.W. and N.W. (2011-006)

2011 VT 124

[Filed 18-Nov-2011]

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.

2011 VT 124

No. 2011-006

In re R.W. and N.W., Juveniles

Supreme Court

On Appeal from

Superior Court, Lamoille Unit,

Family Division

May Term, 2011

Dennis

R. Pearson, J.

Michael Rose, St. Albans, for Appellant B.W.

William Sorrell, Attorney General, Montpelier, and Martha E.

Csala, Assistant Attorney General,

and Andrew Stone, Legal Intern (On the Brief),

Waterbury, for Appellant/Cross-Appellee

Department for Children & Families.

Matthew F. Valerio, Defender General, and Anna Saxman,

Deputy Defender General,

Montpelier, for Respondents-Appellees.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and

Burgess, JJ.

¶ 1.

BURGESS, J. In this termination of parental rights

case, we consider two separate appeals pertaining to mother’s and father’s

respective rights to their two daughters, seventeen-year-old R.W. and

thirteen-year-old N.W. The case presents novel jurisdictional questions

because the parents and children are citizens of Sri Lanka and, although mother

and the children have been residents of Vermont for a number of years, father

continues to reside in Sri Lanka and has never been to Vermont. The

Department for Children and Families (DCF) petitioned to terminate both

mother’s and father’s residual parental rights. The family division

granted the request as to mother, but concluded it lacked personal jurisdiction

over father. Mother appeals termination of her parental rights, arguing that

the family division of the superior court applied the incorrect standard of

proof with respect to changed circumstances and engaged in a faulty

best-interests analysis. DCF filed a separate appeal as to father,

arguing that even though father lacks minimum contacts with Vermont, the court

has jurisdiction to adjudicate the status of his children, who were within the

court’s jurisdiction. We reverse the court’s decision as to both parents

and remand the cases.

¶ 2.

The court found the following facts. Mother was born in Sri Lanka

to a Catholic Sinhalese family. Mother worked as a teacher in Sri

Lanka. She married father in 1992. R.W. and N.W. were born in Sri

Lanka in February 1994 and November 1997, respectively. In 2000, after

father lost money in business dealings, mother left for New York City and found

work as a nanny to help pay off father’s debts. R.W. came to live with

mother in 2002 when she was eight. Mother integrated herself into the

Sinhalese community in New York and met a man, whom she married in July 2003. [1]

¶ 3.

Mother, her new husband, and R.W. moved to Rutland, Vermont in the

summer of 2003. Shortly thereafter, N.W. came to live with them.

The family then moved to Barre in September 2003 to act as caretakers for a

motel. The girls attended school, learned English, and became exposed to

American culture. In July 2005, the family moved again, this time to

Stowe to work at an inn. Some time between April and June 2006, R.W.

disclosed to her school guidance counselor that her stepfather was sexually and

physically abusing her. She also alleged that mother was disciplining her

by hitting her with a broom handle. R.W. described a specific incident

where mother hit her with a wooden spoon on her hand. DCF investigated

and substantiated the allegations of abuse. Following DCF’s petition to

have the girls adjudicated children in need of care or supervision (CHINS), the

court granted an emergency detention order on June 9, 2006, and DCF obtained

custody of the girls. R.W. and N.W. were placed in a foster home, and

R.W. began to attend counseling. Both girls adjusted quickly to their new

situation and excelled academically and socially in their new schools.

¶ 4.

Unfortunately, the merits hearing on the CHINS petitions was delayed due

to the difficulty of obtaining a Sinhalese interpreter to assist mother, her

counsel, and the court. During this waiting period, mother and stepfather

had a baby boy in August 2006. Visits with mother were difficult during

this interim period because stepfather was prohibited from having contact with

the girls by the family division and also by the criminal division in

connection with pending criminal charges. The merits hearing was finally

held in January 2007. At the hearing, mother admitted that she had hit

R.W. with a wooden spoon. She claimed that such punishment was acceptable

in Sri Lankan culture. The court found that DCF had established by a

preponderance of the evidence that mother had physically abused R.W., and that

N.W. was at risk of abuse. The court declined to make findings on the

sexual abuse allegations.

¶ 5.

The initial case plan had a goal of reunification. Nonetheless,

the girls remained in DCF custody through 2007. Reunification and

visitation with mother were complicated by the fact that mother was still

living with stepfather. Mother was economically dependent on stepfather

to support and care for her and the new baby. She was also legally

dependent on him for her status in the United States. Visitation was

supervised and took place primarily at DCF offices. Although mother

admitted that even prior to R.W.’s allegations, she recognized that stepfather

had a strong affinity for R.W. and she suspected he was “engaging in

inappropriate sexual behavior” with her, she blamed R.W. for the break up of

the family and was skeptical of the sexual abuse claims. According to

R.W., during visits, mother repeatedly urged R.W. to tell the truth and drop

the allegations, but the visit monitors were unable to tell how much pressure

mother applied to R.W. because the conversations were in Sinhalese.

¶ 6.

In 2008, mother began to believe R.W.’s allegations, and stepfather left

the household. DCF assisted mother in obtaining an apartment and filing a

petition for asylum so she could obtain residency visas for her and the

girls. After progressively increased visitation, in the fall of 2008,

R.W. and N.W. were living almost full-time with mother while still in DCF

custody. Mother’s relationship with the girls was strained by

disagreements over the girls’ clothing and behavior. Mother perceived

that they lacked respect for their elders, used inappropriate speech, and wore

immodest clothing.

¶ 7.

In February 2009, mother and R.W. had an argument about household

chores, and mother broke a household item in anger and frustration. In

March 2009, an event occurred in which it appeared that mother was not

adequately supervising R.W. DCF considered it a serious incident and

again placed the girls in foster care. Mother lost the financial support

DCF was providing and in June 2009 moved first to New York to stay with friends

and then to Texas, where stepfather was living. While in Texas, mother

lived with him for at least some period of time. Mother had a supervised

visit with the girls in August 2009, but then had little contact with them

until her return to Vermont in February 2010. At the time of the final

hearing, mother and her son were living with a friend in Vermont. Mother

was working part-time, taking English classes, and trying to obtain a

residence. She also had instituted proceedings to end her marriage with

stepfather.

¶ 8.

In September 2009, DCF filed petitions to terminate the parental rights

of father and mother. In March 2010, DCF moved for permission to serve

father by publication. In support, a DCF investigator averred that he had

been unable to locate father by searching computer websites, or by contacting

the Sri Lankan embassy and a Sri Lankan government agency where it was believed

father had been employed. The investigator also explained that he had

attempted to contact a friend of mother for assistance in locating father, but

this person had not called back. There is no mention in the affidavit as

to whether the investigator sought mother’s assistance directly. Based on

DCF’s application and supporting affidavit, the court granted service by

publication, and notices of the termination hearing were published in a Sri

Lankan newspaper in English and Sinhalese.

¶ 9.

Evidently, mother did have contact information for father. At the

final hearing, mother testified that R.W. asked mother for father’s electronic

mail address. Apparently, R.W. used the electronic mail address to

contact father, who then contacted DCF’s counsel and the girls’

caseworker. Father’s emails to DCF’s counsel indicate that father sought

to obtain a visa so he could attend the termination hearing, but that he had

been unable to do so.

¶ 10.

Prior to the commencement of the final hearing, a person identifying

himself as father contacted the court, and there was a discussion on the record

as to whether father could participate by phone. The court concluded that

it could not make the necessary findings under Rule for Family Proceedings 17

to allow father’s participation by phone because it could not verify father’s

identity or assure the adequacy of its telephone system to afford all parties participation

as required by the rule. [2]

Thus, the court denied the request.

¶ 11.

The termination hearing proceeded against mother. DCF presented

testimony from the girls’ therapist, their foster parents, and two DCF

caseworkers. Mother testified on her own behalf. Based on the

evidence, the court concluded that there was a change in circumstances because

over a substantial period of time mother had not made progress towards

addressing the issues that led to the children being taken into custody.

The court made no findings regarding the truth of the sexual abuse allegations

against stepfather, but it found that mother did not properly support R.W.,

inappropriately pressured R.W. to recant her claims of abuse, and did not

demonstrate interest and affection for the girls. The court determined

that the State’s burden was to show stagnation by a preponderance of the

evidence and it found that DCF had met this burden. The court found by

clear and convincing evidence that termination was in the children’s best

interests because mother would not be able to parent them within a reasonable

time and they needed stability.

¶ 12.

On those bases, the court terminated mother’s parental rights.

Following judgment, DCF moved to amend the order to also include termination of

father’s parental rights. The court denied the request. Mother

appeals termination of her parental rights, and DCF appeals the court’s denial

of its request to assume jurisdiction over father and to terminate his parental

rights.

I.

¶ 13.

We first address mother’s appeal. Mother argues that the court

erred by employing a preponderance-of-the-evidence, rather than a

clear-and-convincing-evidence, standard to evaluate whether she had stagnated

in her ability to care for the children. Mother further contends that the

court’s best-interests analysis lacked a rational basis.

¶ 14.

When termination of parental rights is sought, the trial court must determine,

first, whether there has been a substantial change in material circumstances

and, second, whether termination is in the child’s best interests. In

re B.W. , 162 Vt. 287, 291 , 648 A.2d 652, 654 (1994); see 33 V.S.A.

§§ 5113, 5114. A substantial change in material circumstances is

“most often found when the parent’s ability to care properly for the child has

either stagnated or deteriorated over the passage of time.” In re B.W. ,

162 Vt. at 291 , 648 A.2d at 654-55 (quotation omitted). “Stagnation may

be shown by the passage of time with no improvement in parental capacity to

care properly for the child.” Id . (quotation omitted).

¶ 15.

The State has the burden of proof at both stages and, as to each point,

must meet its burden “by clear and convincing evidence.” In re J.R. ,

164 Vt. 267, 270 , 668 A.2d 670, 673 (1995). Thus, the trial court must

find stagnation, as well as best interests, by clear and convincing evidence.

On appeal, we will affirm the trial court’s findings unless they are

clearly erroneous and its conclusions if supported by the findings. In

re B.S. , 166 Vt. 345, 350 , 693 A.2d 716, 719 (1997).

¶ 16.

Mother argues that the court’s finding of stagnation was incorrectly

based on a preponderance-of-the-evidence standard. On this point there is

no dispute. Although the court recognized that the determination of the

children’s best interests is by clear and convincing evidence, the court

stated, incorrectly, that change of circumstances may be proven “simply by a

preponderance of the evidence.” It was error to do so. The court’s

determination of whether there has been a material change in circumstances must

be by clear and convincing evidence. In re A.W. , 164 Vt. 412, 416 ,

670 A.2d 1265, 1267 (1995); see In re T.E. , 155 Vt. 172, 175 , 582 A.2d

160, 162 (1990) (explaining that “due process requires that a higher

standard—clear and convincing evidence—be imposed on the State whenever it

seeks permanently to sever” parental rights).

¶ 17.

Conceding that the court used the incorrect standard, the State argues

that the error was harmless. We have employed the harmless error standard

in termination cases, and, under that standard, an error warrants reversal only

if “a substantial right of the party is affected.” In re B.S. , 163

Vt. 445, 454 , 659 A.2d 1137, 1143 (1995) (citing V.R.C.P. 61 and V.R.F.P.

2(a)). In this case, the State submits that the error does not warrant

reversal because it is evident that the court’s conclusion regarding mother’s

stagnation would have been the same under a clear-and-convincing-evidence

standard.

¶ 18.

The error cannot be considered harmless. The court’s

error related

to the central issue of whether there were changed circumstances by

stagnation,

and the court specifically noted that it was making findings only by a

preponderance of the evidence. The court recognized that part of

the

four-year delay in this case was “attributable to the

court’s own scheduling

difficulties,” and that DCF could have done more to assist

mother, but it

concluded that “it is more likely than not” that mother

would have failed to

progress even without these delays. Given the close balancing

that the

court engaged in and its explicit determination of the issue by an

impermissibly low standard of proof, we cannot conclude that as a

matter of law

that the court’s conclusion would have been the same under a

clear-and-convincing-evidence standard. In addition, we decline

to weigh

the evidence in the first instance. Therefore, the matter is

remanded for a finding of whether there was a substantial change of

material circumstances in this case. See In re J.R., 164 Vt. at

271 , 668 A.2d at 673-74 (reversing where findings were made under an

incorrectly low standard of proof). On remand, the trial court

may either decide the matter on the current record or hold a new

hearing if presented with a persuasive proffer of new, more recent

evidence material to the question of whether there was a substantial

change of circumstances. See In re D.P., 147 Vt. 26, 32 , 510 A.2d

967, 971 (1986) (allowing a new hearing on remand “[b]ecause of

the passage of time since the original disposition

hearing”).

¶ 19.

Because it may arise again on remand, we briefly address mother’s second

argument that the court’s best-interests analysis relying on the children’s

need for permanency lacks a rational basis. As to R.W., mother argues

that R.W.’s best interests will not be served by terminating her rights because

R.W. will soon reach the age of majority and will not have any ability to be

adopted in the interim due to the uncertainty regarding father’s parental

rights. Essentially, mother contends that there is no need to terminate

mother’s rights because regardless of the status of mother’s residual rights,

R.W. will not be freed for adoption. In addition, mother argues that the

court terminated mother’s rights to N.W. in part to maintain the same resolution

for each child because the court found that separate resolutions for the girls

would be “psychologically traumatic” for N.W. Because mother perceives

that termination of her rights to R.W. was error, she argues that there is no

rational basis to terminate her rights to N.W. either.

¶ 20.

The court’s analysis was not lacking in reason. Although R.W. and

N.W. will not be immediately freed for adoption because of the ongoing

proceedings regarding father, this does not preclude termination of mother’s

rights. The children’s therapist testified and the court found that both

girls need certainty and stability. Even if they are not totally free for

adoption, severing the parental bond with mother could help move them towards

this needed permanency. [3]

II.

¶ 21.

Next, we consider DCF’s appeal from the court’s refusal to adjudicate

termination of father’s rights. As previously noted, the termination

petition relating to father was initially left open following the trial court’s

denial, at the commencement of the final hearing, of father’s request to

participate by telephone. Thus, the court’s final order dealt only with

the case related to mother and noted that “no decision was made with respect to

[father], and indeed the court did not even address the jurisdictional and

other more substantive issues regarding [father] and his involvement, if any,

in these proceedings.” The State then moved to amend the final order to

terminate father’s parental rights, asserting that the court had personal

jurisdiction over father pursuant to the so-called status exception—not yet

recognized by this Court—to the minimum contacts ordinarily necessary for state

court jurisdiction consistent with due process. The court denied the

motion in a one-page order, citing its reluctance to proceed when neither

father nor anyone else was in a position to appeal, and so declined to resolve

“this important policy question . . . [as] a single trial judge by

default.” While not specifically denoted as such, we read the court’s

order as a denial of the termination petition for lack of personal jurisdiction

over father.

¶ 22.

DCF appealed this order. Using the electronic mail and street

address that father provided to DCF counsel, DCF sent father a copy of the

notice of appeal in this case and DCF’s brief. This Court also attempted

to contact father using the electronic mail address in the trial court

record. Father has not responded to DCF or this Court, and has not

entered a notice of appearance in this case.

¶ 23.

DCF argues that even though father is a citizen and resident of Sri

Lanka and has never been to Vermont, the family division had jurisdiction to

adjudicate the status of his parental rights to R.W. and N.W., who were

undeniably within the court’s jurisdiction. To understand DCF’s argument,

we begin with a review of the requirements for personal jurisdiction.

Vermont courts may exercise jurisdiction over an out-of-state individual where

there is both statutory and constitutional power to do so. Vermont’s

long-arm statute provides:

Upon the service,

and if it appears that the contact with the state by the party or the activity

in the state by the party or the contact or activity imputable to him is

sufficient to support a personal judgment against him, the same proceedings may

be had for a personal judgment against him as if the process or pleading had

been served on him in the state.

12 V.S.A. § 913(b). We have held that

the statute’s terms are broad enough to permit a court to exercise jurisdiction

over an absent defendant “to the full extent permitted by the Due Process

Clause.” N. Aircraft, Inc. v. Reed , 154 Vt. 36, 40 , 572 A.2d 1382,

1385 (1990). Due process allows a forum to assert jurisdiction over a

nonresident defendant who has “ ‘certain minimum contacts with [the forum

state] such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice.’ ” Id . at 41,

572 A.2d at 1386 (quoting Int’l Shoe Co. v. Washington , 326 U.S. 310,

316 (1945)).

¶ 24.

DCF agrees that father does not have the minimum contacts needed for

conventional Vermont jurisdiction. Nevertheless, DCF argues that in

termination-of-parental-rights cases the court’s jurisdiction should be

grounded in the forum’s connection to the children, rather than to the

parents. According to DCF, it is the children’s contacts that provide a

sufficient basis for the court to determine the legal status of the parents’

relationship to the juveniles within the court’s jurisdiction.

¶ 25.

The Supreme Court of the United States has long recognized a status

basis for exercising jurisdiction in satisfaction of due process

requirements. The seminal case of Pennoyer v. Neff , which required

a defendant’s actual presence or service in a state for jurisdiction to attach,

excepted from its strict rule “cases affecting the personal status of the

plaintiff.” 95 U.S. 714, 733 (1877). The Court explained:

To prevent

any misapplication of the views expressed in this opinion, it is proper to

observe that we do not mean to assert, by any thing we have said, that a State

may not authorize proceedings to determine the status of one of its

citizens towards a non-resident, which would be binding within the State,

though made without service of process or personal notice to the non-resident.

The jurisdiction which every State possesses to determine the civil status

and capacities of all its inhabitants involves authority to prescribe the

conditions on which proceedings affecting them may be commenced and carried on

within its territory. The State, for example, has absolute right to prescribe

the conditions upon which the marriage relation between its own citizens shall

be created, and the causes for which it may be dissolved.

Id . at 734-35. Subsequently, the

Supreme Court’s jurisprudence established the minimum contacts test as the

basis for jurisdiction for both in personam, Int’l Shoe , 326 U.S. at 316 ,

and eventually in rem cases, but continued to exempt “status cases,”

recognizing Pennoyer ’s extension of jurisdiction to “cases involving the

personal status of the plaintiff, such as divorce actions, could be adjudicated

in the plaintiff’s home State even though the defendant could not be served

within that State.” Shaffer v. Heitner , 433 U.S. 186, 201 (1977)

(citing Pennoyer , 95 U.S. at 733-35 ). In Shaffer , the Court

specifically noted: “We do not suggest that jurisdictional doctrines other than

those discussed in text, such as the particularized rules governing

adjudications of status, are inconsistent with the standard of fairness.”

Id . at 208 n.30.

¶ 26.

The critical question in this appeal is whether a child’s relationship

to her parents is such an adjudication of status. The Supreme Court has

not defined status jurisdiction or explicitly recognized its application to any

type of case other than divorce. The issue of status jurisdiction for

custody matters did arise in the case of May v. Anderson , 345 U.S. 528

(1953). In May , the father obtained a custody decree from

Wisconsin, where he and the children were domiciled, while the mother and

children were in Ohio and without the mother’s in-state notice or

participation. Writing the majority decision for a divided court, Justice

Burton framed the issue as whether “an Ohio court must give full faith and

credit to a Wisconsin decree awarding custody of the children to their father

when that decree is obtained by the father in an ex parte divorce action in a

Wisconsin court which had no personal jurisdiction over the mother.” Id .

at 528-29. Justice Burton reasoned that Ohio was not required to

recognize the Wisconsin decree, explaining that the mother’s rights to “the

care, custody, management and companionship of her minor children” were “far

more precious” than property rights and, thus, could not be adjudicated without

personal jurisdiction over her. Id . at 533. While this

decision appears to reject status-based jurisdiction for custody cases, in a

concurrence necessary for the majority, Justice Frankfurter narrowed the

holding. He emphasized that “the only thing the Court

decides . . . is that the Full Faith and Credit Clause does

not require Ohio, in disposing of the custody of children in Ohio, to accept,

in the circumstances before us, the disposition made by Wisconsin.” Id .

at 535 (Frankfurter, J., concurring).

¶ 27.

In dissent, Justice Jackson was concerned with the Court’s apparent

holding that a “state in which a child and one parent are domiciled and which

is primarily concerned about his welfare cannot constitutionally adjudicate

controversies as to his guardianship.” Id . at 539 (Jackson, J.,

dissenting). Noting the “difference between a proceeding involving the status,

custody and support of children and one involving adjudication of property

rights,” he explained that jurisdiction for custody disputes should be

determined “with the idea of making the best disposition possible for the

welfare of the children.” Id . at 541. Therefore, he

explained:

Personal

jurisdiction of all parties to be affected by a proceeding is highly desirable,

to make certain that they have had valid notice and opportunity to be

heard. But the assumption that it overrides all other considerations and

in its absence a state is constitutionally impotent to resolve questions of

custody flies in the face of our own cases.

Id .

¶ 28.

Given the fragmented nature of the Court’s reasoning, the holding of May

has been viewed as limited to the reasoning of Frankfurter’s concurrence and

not as a bar to exercising status jurisdiction in custody cases. See In

re Marriage of Leonard , 175 Cal. Rptr. 903, 907-08 (Ct. App. 1981)

(construing May as limited to whether state is required to recognize

custody order under Full Faith and Credit Clause); R. Wasserman, Parents,

Partners, and Personal Jurisdiction , 1995 U. Ill. L. Rev. 813 , 874-79

(explaining that Frankfurter’s view of what the Court decided in May is

“widely accepted,” but arguing that Burton’s opinion is incompatible with

Frankfurter’s view and is good law). In any event, May concerned

custody and does not control the question of whether a court may exercise

status-based jurisdiction over a termination proceeding absent personal

jurisdiction over both parents. See In re Termination of Parental

Rights to Thomas J.R. , 2003 WI 61, ¶¶ 32-35 , 663 N.W.2d 734 (discussing May

and concluding that it is not dispositive for cases involving termination of

parental rights).

¶ 29.

Some clues indicate that the Court would be receptive to applying status

jurisdiction to termination cases. First, in Shaffer ’s discussion

of status jurisdiction, the Court cited to a law review article by Justice

Traynor. 433 U.S. at 208 n.30 (citing R. Traynor, Is this Conflict

Really Necessary? , 37 Tex. L. Rev. 657 (1959)). In that article,

Justice Traynor argues that in addition to marriage a state should have

jurisdiction to adjudicate the status of children within the state even if the

parents lack minimum contacts with the state. As he explains,

the state where a

child is present must be competent to regulate his custody whether his parent

is present or not, and if the parent cannot be found or has failed to discharge

his parental obligations, that state, given the best notice reasonably

possible, should be free to promote the interest of the child by permitting his

adoption.

Traynor, supra , at 662 (footnote

omitted). In addition, following Shaffer in Stanley v. Illinois ,

the Court held that due process requires that an unwed father be granted a

hearing on his parental fitness before his child could be taken from him in a

dependency proceeding, but noted that the neglect proceedings could go forward

if the father did not respond to notice, even notice made by publication.

405 U.S. 645 , 657 n.9 (1972).

¶ 30.

In Vermont, this Court has applied status jurisdiction in the context of

divorce actions, emphasizing that the “ ‘state, by virtue of its command

over its domiciliaries and its large interest in the institution of marriage,

can alter within its own borders the marriage status of the spouse domiciled

there, even though the other spouse is absent.’ ” Poston v.

Poston , 160 Vt. 1, 5 , 624 A.2d 853, 855 (1993) (quoting Williams v.

North Carolina , 317 U.S. 287, 298-99 (1942)). Although we have not

directly applied this principle to other situations, such as custody, we have

recognized “the general rule in other states that jurisdiction of a proceeding

involving the commitment or control of a delinquent or neglected child is

dependent on the presence of the child within the jurisdiction, regardless of

his place of residence or that of his parents.” In re B.J.C. , 149

Vt. 196, 198 , 540 A.2d 1047, 1049 (1988) (affirming court’s exercise of

jurisdiction over emergency detention hearing for nonresident child who was

brought into state under exigent circumstances and whose parents were out of

state).

¶ 31.

Based on the foregoing, we conclude that status jurisdiction applies to

cases involving termination of parental rights. [4] As another court explained, status

is “a relationship between two persons, which is not temporary in its nature,

is not terminable at the mere will

of either and with which the State is concerned. Marriage is a status and

so too is the relationship of parent and child, whether natural or

adoptive.” In re Marriage of Leonard , 175 Cal. Rptr. at 908

(quotation and alterations omitted). We agree. Much like the

marriage relationship, severance of a parent’s legal relationship to his or her

child requires state intervention and is a matter of state concern. Thus,

a child’s home state has jurisdiction to adjudicate the status of a child

present there even if the parents lack minimum contacts with the forum.

¶ 32.

In so ruling, we join the other jurisdictions that have similarly held

that asserting jurisdiction over termination proceedings based on status does

not offend the Due Process Clause. See J.D. v. Tuscaloosa Cnty. Dep’t

of Human Res. , 923 So. 2d 303, 310 (Ala. Civ. App. 2005) (holding that

“status exception to the requirement that the defendant have minimum contacts

with the forum state applies to termination-of-parental-rights proceedings”); S.B.

v. State , 61 P.3d 6, 14-15 (Alaska 2002) (holding that parent’s due process

rights are not violated by exercise of status jurisdiction over termination

proceeding); In re M.L.K. , 768 P.2d 316, 319 (Kan. Ct. App. 1989)

(holding that status jurisdiction applies to termination proceeding); Div.

of Youth & Family Servs. v. M.Y.J.P. , 823 A.2d 817, 836 (N.J. Super.

Ct. App. Div. 2003) (concluding that New Jersey had jurisdiction to terminate

parental rights of mother living in Haiti to child brought to state by father);

In re Adoption of Copeland , 43 S.W.3d 483, 487 (Tenn. Ct. App. 2000)

(holding that termination proceeding involves an adjudication of status and

does not require minimum contacts over parents); State ex rel. W.A. ,

2002 UT 127, ¶¶ 22-28 , 63 P.3d 607 (holding that status jurisdiction

applies to termination cases); In re Thomas J.R. , 2003 WI 61, ¶¶ 37-38

(holding that status jurisdiction applies in all custody cases including

termination); see generally B. Atwood, Child Custody Jurisdiction and

Territoriality , 52 Ohio St. L.J. 369 , 372-73 (1991) (arguing for a

status-based approach to custody jurisdiction and explaining that “a court

needs ‘territorial jurisdiction’ over the child custody dispute, rather than

personal jurisdiction over the absent contestant” because “the needed judicial

power arises from child-centered contacts with the forum state”).

¶ 33.

Decisions holding otherwise are not persuasive because of the unique

facts or considerations involved in those cases. In In re Vernon R.V. ,

while the court concluded that it could not terminate a noncitizen, nonresident

parent’s rights based on the mother’s petition, it left open the possibility of

exerting status jurisdiction in an adoption-contemplation termination case

because the interest of the state and of the child would be much greater.

1999-NMCA-125, ¶ 15 , 991 P.2d 986 . Similarly, in In re John Doe ,

the Hawaii Supreme Court declined to exercise status jurisdiction over a

proceeding to terminate the rights of a foreign national parent who was not

present in the state where neither parent was a resident of the state and the

child became a resident there only as a result of the proceedings. 926

P.2d 1290, 1298-1300 (Haw. 1996). In contrast, here, the state’s interest

is much stronger because mother and both girls resided in Vermont for years

prior to the petition for termination.

¶ 34.

Concluding that a termination proceeding is a status-based adjudication

generally, we must determine whether the exercise of status jurisdiction in this

particular case is appropriate. This is a question of both statutory and

constitutional authority because to exercise jurisdiction, a state must have

both. N. Aircraft, Inc. , 154 Vt. at 40 , 572 A.2d at 1385 ; see State

ex rel. W.A. ,, 2002 UT 127, ¶ 14 (explaining that to determine

jurisdiction, court must assess whether a statute confers authority and whether

assertion of jurisdiction comports with due process). We consider these

questions of law de novo. In re Beckstrom , 2004 VT 32, ¶ 9 ,

176 Vt. 622 , 852 A.2d 561 (mem.).

¶ 35.

Here, the source of statutory authority is not Vermont’s general

long-arm statute, which does not address jurisdiction based on status, but the

Uniform Child Custody Jurisdiction Act (UCCJA), which contains specific provisions

for determining which forum has jurisdiction to adjudicate matters related to

child custody. See 15 V.S.A. §§ 1031-1051. [5] The UCCJA was “created to end the

interstate custody jurisdictional tug-of-war between states.” K. Stoner, The

Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)—A

Metamorphosis of the Uniform Child Custody Jurisdiction Act (UCCJA) , 75

N.D. L. Rev. 301 , 301 (1999); see Wasserman, supra , at 865 (explaining

that the UCCJA was designed to prevent forum shopping and conflict arising from

multiple states simultaneously adjudicating custody of same child). The

statute bases jurisdiction on the child’s relationship with the forum, not the

parents’ presence in, or contacts with, that forum. Thus, under the

UCCJA, a state has jurisdiction to determine a child custody matter if it “is

the home state of the child at the time of commencement of the proceeding.” [6] 15 V.S.A. § 1032(a)(1)(A); see

also Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(a),

(c)(2)(A) (requiring states to recognize and enforce custody determinations

made by a jurisdiction that was child’s home state).

¶ 36.

The UCCJA defines “custody proceeding” as including “proceedings in

which a custody determination is one of several issues, such as an action for

divorce or separation, and includes child neglect and dependency

proceedings.” 15 V.S.A. § 1031(3). Termination is not

specifically included in this list, but it is settled that a TPR proceeding

from a CHINS adjudication is a child neglect and dependency proceeding within

the terms of the UCCJA. In re B.C. , 169 Vt. 1, 4 , 726 A.2d 45, 48

(1999) (recognizing that “CHINS and TPR proceedings are subject to the Uniform

Child Custody Jurisdiction Act (UCCJA)”). Other courts similarly apply

the UCCJA to termination cases. See, e.g., In re Copeland , 43

S.W.3d at 487 (holding that termination is a custody proceeding within the

meaning of the UCCJA because it “determines whether a parent will retain

custodial rights of his or her child”); In re Thomas J.R. , 2003 WI 61, ¶

26 (concluding that termination of parental rights is a custody proceeding

within the meaning of the UCCJA). But see In re Vernon R.V. , 1999-NMCA-125,

¶ 7 (concluding that termination is not a custody proceeding within the

meaning of state child custody jurisdiction statute with different language

than UCCJA).

¶ 37.

Under the UCCJA, Vermont has jurisdiction to adjudicate the termination

of father’s parental rights. Vermont is undeniably the girls’ home state

because they have resided here continuously since 2003. 15 V.S.A. §

1031(5) (defining home state as the place where a child and a parent have

resided “for at least six consecutive months”). Moreover, it is not

suggested that any other state has jurisdiction to adjudicate father’s parental

rights. Id . § 1032(a)(4). Therefore, Vermont has

statutory authority to adjudicate the dispute.

¶ 38.

Next, it must be determined if exercising jurisdiction in this case

would “offend traditional notions of fair play and substantial justice.” Int’l

Shoe , 326 U.S. at 316 (quotation omitted); see J.D. , 923 So. 2d at

310 (considering whether status exception satisfies due process in particular

situation); State ex rel. W.A. , 2002 UT 127, ¶ 19 (exercise of

status-based jurisdiction must have both statutory and constitutional basis).

Usually, this is satisfied by the “minimum contacts” requirement, which

serves two purposes: protecting defendants from being forced to defend

themselves in a “distant or inconvenient forum,” and ensuring “that the States,

through their courts, do not reach out beyond the limits imposed on

them . . . as coequal sovereigns in a federal system.”

World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 292 (1980).

As noted above, even assuming the facts as alleged by the State, father’s

contacts with Vermont are nonexistent. The State agrees that he has never

been to this state and conducts no business here.

¶ 39.

In this case, however, the fairness of proceeding against father is

satisfied not by his contacts with Vermont, but because the State is seeking to

adjudicate the status of his children, who are within the court’s

jurisdiction. As explained, supra , ¶ 31, adjudication of the

children’s legal relationship to father is a determination of status like the

adjudication of divorce, which is within this state’s jurisdictional authority.

See In re S.A.V. , 837 S.W.2d 80, 84 (Tex. 1992) (explaining that

“a family relationship is among those matters in which the forum state has such

a strong interest that its courts may reasonably make an adjudication affecting

that relationship even though one of the parties to the relationship may have

had no personal contacts with the forum state”).

¶ 40.

Furthermore, under factors set forth by the Supreme Court, Vermont is a

reasonable forum to adjudicate the status of the children. Reasonableness

depends on several factors: (1) “the burden on the defendant”; (2) the forum

state’s interest; (3) “the plaintiff’s interest in obtaining relief”; (4) the

interest of the interstate judicial system in efficiently resolving the

controversy; and (5) “the shared interest of the several States in

furthering fundamental substantive social policies.” Asahi Metal

Indus. Co. v. Superior Court of Cal., Solano Cnty. , 480 U.S. 102, 113

(1987) (quotation omitted). We consider each of these factors in turn.

¶ 41.

First, the burden on father is recognized as considerable. As the

Supreme Court of the United States explains: “The unique burdens placed upon

one who must defend oneself in a foreign legal system should have significant

weight in assessing the reasonableness of stretching the long arm of personal

jurisdiction over national borders.” Id . at 114.

Nonetheless, some of the burden on father of litigating in a foreign and

distant forum is ameliorated by Vermont’s procedural rules and statutory

provisions applicable to termination proceedings. See Stoner, supra ,

at 307-08 (listing provisions of the UCCJEA that lessen the burden of

litigation on out-of-state parents).

¶ 42.

Weighed against father’s burden is the interest of Vermont as the forum

state. In its role as parens patriae, Vermont is responsible for the

welfare of resident children and has a strong interest in assuring they are

safe and well cared for. See In re Marriage of Leonard , 175 Cal.

Rptr. at 909 (explaining that status jurisdiction in custody cases is based on

the “the right and obligation of the state in its parens patriae role to

consider the welfare of the child subject to its jurisdiction and to make a

determination that is in the best interests of the child”); Caplan v.

Donovan , 879 N.E.2d 117, 123 (Mass. 2008) (“This status exception to the

personal jurisdiction ordinarily required by due process reflects the

importance of a State’s interest in the protection of offspring within its

borders.”); Wenz v. Schwartze , 598 P.2d 1086, 1091 (Mont. 1979)

(distinguishing ordinary custody cases from those “when the court stands as

Parens patriae seeking to assist the welfare of the abused, abandoned, or

neglected child”). When children are neglected or abandoned by their

parents, the state is required to care for children and has an interest in

resolving their status. The children and mother have resided in Vermont

since 2003, and Vermont DCF has had custody of the children since 2006.

Thus, Vermont has a strong interest in reaching a positive outcome for them.

See In re S.A.V. , 837 S.W.2d at 87 (exercising jurisdiction over

custody matter and relying on the state’s “vital interest in protecting the

rights of children within its borders and providing for their support”); cf. In

re John Doe , 926 P.2d at 1298-99 (concluding that state’s interest in adjudicating

termination proceeding was insufficient to justify the exercise of personal

jurisdiction over nonresident alien parent given that neither parent was a

resident and child was resident only as a result of proceedings).

¶ 43.

Next, we examine the plaintiff’s interest. Although the children

did not file this termination petition and are not technically plaintiffs, they

have joined DCF’s request for termination, and we consider their interest under

this factor. The children’s interest certainly weighs in favor of Vermont

adjudicating the case given the children’s long-time residence and current

presence in this state. Further, if Vermont declines jurisdiction no

other state will likely adjudicate this dispute, leaving the children without a

means to be adopted. See In re Thomas J.R. , 2003 WI 61, ¶ 38

(rejecting requirement of minimum contacts for termination cases in part

because it would result in “no practical forum” for child to have his status

adjudicated). Thus, although “a parent’s right to care for his children

is a fundamental liberty interest,” In re K.M.M. , 2011 VT 30 , ¶ 24, __

Vt. __, 22 A.3d 423 , this interest is not absolute and may be overcome.

Indeed, in termination cases, “[o]ur polestar has been the best interests of

the child.” In re D.R. , 136 Vt. 478, 481 , 392 A.2d 951, 952

(1978). As the Wisconsin Supreme Court emphasized,

Children . . . need a forum in which

their status can be determined. Requiring minimum contacts would often make

termination of parental rights and the subsequent adoption proceedings

impractical or impossible. Such a child would essentially be left in

“limbo,” unable to have a court adjudicate his or her status.

In

re Thomas J.R. , 2003 WI 61, ¶ 39 . The children’s interest in

resolving the status of father’s residual rights is strong and weighs heavily

in favor of Vermont jurisdiction.

¶ 44.

Similarly, the interest of efficient judicial resolution of the case

points to Vermont jurisdiction because there is no other state that is better

suited to resolving the children’s status. The children and mother are

located in this state. Further, the evidence pertaining to termination is

primarily, if not totally, located in Vermont.

¶ 45.

Finally, we consider the interest of the several states. Within

the United States, each state has expressed a strong policy choice in favor of

courts exercising jurisdiction in termination proceedings based on the child’s

connection to the forum state rather than by requiring personal jurisdiction

over both parents. This is demonstrated by every state’s adoption of

either the UCCJA or UCCJEA, which both base jurisdiction foremost on the

child’s connection to the forum state. Because Vermont is the children’s

home state and no other state has a connection to the children, Vermont’s

exercise of jurisdiction is not unreasonable.

¶ 46.

The interest to be considered is arguably broader in this case, where

Vermont’s exercise of jurisdiction has an impact on the rights of a foreign

national in another country. Therefore, we also consider “the procedural

and substantive polices of other nations whose interests are affected by

the assertion of jurisdiction.” Asahi , 480 U.S. at 115 . Even

though Sri Lankan nationals are involved in the proceedings, no apparent

adverse policy concern militates against Vermont adjudication since the

children have not resided in Sri Lanka for several years. Thus, any

interest does not outweigh the other factors weighing in favor of Vermont

jurisdiction.

¶ 47.

Given the patently strong interests of the state and the children, and

the lack of competing states’ interests, we conclude that Vermont’s exercise of

jurisdiction is reasonable. Vermont jurisdiction does not violate

traditional notions of fair play and substantial justice. Subject to

father’s opportunity for further challenge, the family division has

jurisdiction to adjudicate termination of father’s residual parental rights to

R.W. and N.W.

III.

¶ 48.

Having concluded that the court erred in denying the petition to

terminate father’s parental rights for lack of jurisdiction, there remains the

question of how to proceed with the case. As explained, supra , ¶

21, the termination of father’s rights was not adjudicated at the final

hearing, but was sought by DCF in a post-judgment memorandum. DCF argued

that the court had jurisdiction and further that the record provided sufficient

evidence to terminate father’s rights because it unequivocally showed that he

“has had no involvement with the children since each has come to the United

States—and possibly little involvement prior to that.” On appeal, DCF

continues to argue that father’s rights can be terminated because the record

indisputably demonstrates that “he has played no constructive role in their

lives.”

¶ 49.

We conclude that given the lack of a hearing regarding father and the

consequent lack of any findings by the trial court on the facts relevant to

father, there is no basis for this Court to terminate father’s rights.

DCF’s reliance on In re K.F. , 2004 VT 40 , 176 Vt. 636 , 852 A.2d 584

(mem.), is misplaced. In that case, the father argued that the trial

court erred in concluding that termination was in his child’s best interest

because the court based its decision on factors he alleged were beyond his

control. Id . ¶ 11. We rejected that argument because the

evidence supported the court’s findings that the father bore sole

responsibility for his unavailability to his children and nonparticipation in

services. Id . ¶ 12. Unlike the situation in K.F. ,

here, there is no factual record on which we can review DCF’s allegations

regarding father’s lack of involvement in his children’s lives. Father

has not been represented and has had no opportunity to participate and present

evidence. Thus, the trial court has not made findings on the evidence

related to father. [7]

Without a record, we decline to grant termination in the first instance. Therefore

the matter is remanded to the trial court for a hearing on termination of

father’s rights.

¶ 50.

Because further hearings will be required to resolve the issue of

father’s parental rights, we need not consider whether DCF conducted due diligence

prior to serving father by publication with notice of the first termination

hearing. The putative father’s attempt to participate at the last hearing

suggests that he is available and that his whereabouts are reasonably

discoverable. Thus, on remand, DCF must exercise due diligence anew in

attempting actual notice to father before resorting to service by publication.

V.R.C.P. 4(g)(1); see Mullane v. Cent. Hanover Bank & Trust Co. ,

339 U.S. 306, 317 (1950) (explaining that service by publication is not

preferred but may be used if defendant’s whereabouts cannot be ascertained with

due diligence). This includes seeking the assistance of mother and other

known relatives who may have contact information for father. See In re

D.F. , 2007 SD 14, ¶¶ 9-10 , 727 N.W.2d 481 (explaining that due diligence

depends on circumstances of a particular case but should include inquiry of

relatives).

¶ 51.

We also note that the Vienna Convention on Consular Relations obligates

the United States “to inform the competent consular post without delay of any

case where the appointment of a guardian or trustee appears to be in the

interests of a minor or other person lacking full capacity who is a national of

the sending State.” Vienna Convention on Consular Relations, art. 37,

Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Pursuant to the Supremacy

Clause, this treaty is “the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

Because both children are Sri Lankan citizens, the treaty requires DCF to

notify the Sri Lankan consulate about the pending child neglect

proceedings. See In re Antonio O. , 784 N.W.2d 457, 467 (Neb. Ct.

App. 2010) (advising state social welfare department to put procedures in place

to notify foreign consulate when foreign minor is involved in juvenile

proceedings). Following an order of this Court during the pendency of

this appeal, DCF provided the Sri Lankan consulate with the necessary notice. [8]

¶ 52.

We decline to delineate how the court should engineer father’s

participation on remand because the exact method chosen will depend upon facts

that cannot be known at this stage. See M.Y.J.P. , 823 A.2d at

841-43 (noting that due process involves balancing of several factors and

deferring to trial court’s choice of procedure). Given father’s apparent

efforts to contact the court, the family division can now anticipate a response

from the putative father and make advance arrangements for his participation,

including removal to a better equipped courtroom, arrangements for his

appearance by telephone, provision for any necessary interpreters for father

and for the court, and assignment of counsel.

¶ 53.

Finally, the termination petition cannot be decided upon default.

V.R.F.P. 2(a)(2), 3(a) (exempting application of Rule of Civil Procedure

55 concerning default judgments from application to termination proceedings).

Therefore, if father fails to appear, DCF is still required to present evidence

supporting the petition, and the court must make findings on the best interests

of the children by clear and convincing evidence. 33 V.S.A. § 5114

(explaining that “ any time a petition or request to terminate all

residual parental rights of parent” is made, the court is required to consider

the best interests of the child (emphasis added)); see In re Termination of

Parental Rights to Torrance P. , 2006 WI App 55, ¶ 6 , 711 N.W.2d 690 (noting

that even where a parent defaults and fails to appear, the court must hold an

evidentiary hearing and determine that there are grounds to terminate by clear

and convincing evidence).

¶ 54.

In sum, termination of parental rights is a determination of status and

may be adjudicated when the forum state has a sufficient connection to the

children, even absent minimum contact jurisdiction over a parent.

Further, in this case, we hold that exercise of jurisdiction is authorized by

the UCCJA and is reasonable given the strong interests of the state and the

children in resolution of father’s rights as well as the lack of any

conflicting jurisdictional claims by another state or country.

Reversed and remanded for

further proceedings as to both mother and father .

FOR THE COURT:

Associate

Justice

¶ 55.

DOOLEY, J., concurring. I concur in the majority’s

resolution of mother’s appeal. As to father, I agree that the trial court

erred in dismissing the termination petition for lack of jurisdiction and

therefore concur that the case should be remanded for further proceedings.

However, I am concerned with the procedures implemented in this case,

which wholly deprived father of a meaningful opportunity to participate in the

case and may have undermined the best interests of the children. It

appears from the record that neither the court nor the Department for Children

and Families (DCF) made any effort to locate and notify father of the

proceeding to adjudicate his girls as children in need of care or supervision

(CHINS) until the eleventh hour when the termination petition was already

pending. Once father was contacted, the court rejected his attempt to

appear by telephone, again precluding father’s participation. While the

factual scenario is new to this Court, the significant numbers of foreign-born

minors in this country and foreign-born citizens in this state generally means

that the international complications present in this case are not unique and

will likely arise again. [9]

Thus, I write separately to emphasize where this case has gone in the wrong

direction and the steps that must be taken in child neglect proceedings to

secure the rights of foreign minors and their noncustodial parents—including

those who are foreign nationals. I also address questions that will

likely again arise on remand regarding father’s participation in this case.

¶ 56.

The most striking deficiency in this case is the total lack of notice to

father of the neglect proceedings involving his children. [10] This is a classic case of

notifying a parent of a juvenile proceeding for the sole purpose of terminating

the parental rights of the parent. DCF obtained custody of the children

based on an emergency detention order issued on June 9, 2006. Yet, the

record reveals that the first time DCF attempted to contact father was in

January 2010 to give him notice of DCF’s petition to terminate parental rights. [11] At that point, the children had

been in DCF custody for three and a half years.

¶ 57.

Such a delay is contrary to Vermont law, which directs that parents,

even noncustodial ones, be notified at the early stages of any child neglect

proceeding. Under the statutes in effect at that time, a copy of the June

2006 detention order should have been delivered to father as the girls’ parent.

33 V.S.A. § 5513(b) (repealed 2009) [12] (directing that an order placing a child

into custody should be delivered to “a parent . . . if they

can be found”). Furthermore, the court had an independent obligation to

“make reasonably diligent efforts to locate noncustodial parents and notify

them of hearings held pursuant to this chapter.” Id .

§ 5519a. The early notification requirement is echoed by the Uniform

Child Custody Jurisdiction Act (UCCJA), which directs that a court must provide

“reasonable notice and opportunity to be

heard . . . to . . . any parent whose

parental rights have not been previously terminated” before issuing a decree in

“child neglect and dependency proceedings.” 15 V.S.A. §§ 1033, 1031(3). [13] For unexplained reasons, however,

there was no attempt by the court or DCF to locate or contact father prior to

January 2010. As the majority decision notes, when DCF finally tried to

give notice to father, its method was inadequate and ineffective. DCF

conceded in the trial court that father finally received actual notice of the

termination from the lawyer for DCF by electronic mail.

¶ 58.

Equally disturbing is that no counsel has ever been assigned to father,

neither in the trial court nor in this Court. Thus, we are issuing this

very important decision based on an ex parte presentation by DCF. A needy

parent in a termination proceeding is entitled to a public defender “when the

court deems the interests of justice require representation.” 13 V.S.A.

§ 5232(3); see Lassiter v. Dep’t of Social Servs. , 452 U.S. 18,

27-32 (1981) (holding that constitutional right to counsel in parental termination proceedings determined on a case-by-case basis).

Certainly, once DCF filed for termination and father had initiated

contact via electronic mail with both the DCF caseworker and the DCF attorney,

the court should have taken steps to determine if father could afford Vermont

counsel and to assign an attorney to represent father’s interest, could he not

afford one. This Court notified father of the appeal and his right to

counsel by electronic mail and sent father an application for public defender

services. Father has not, however, responded. In my judgment,

resolving father’s right to representation has to be the first step on remand.

¶ 59.

The three-and-a-half-year delay in notifying father has prejudiced him

in several ways, some of which cannot be remedied by our remand. First,

it obviously deprived father of an opportunity to participate personally or

through an attorney from the beginning of the proceedings. Second, it

precluded consideration of him, or possibly other Sri Lankan relatives he might

have suggested, as an alternative placement for the children. Third, and

most irreparably, father’s prolonged separation from his children makes

reunification with him more unlikely given the increasing time it would take

for him to develop a bond with them and the positive relationships the girls

have developed with their foster families in the interim. See 33 V.S.A.

§ 5114(a) (listing best-interests factors to include child’s relationship

with parents and foster parents, parent’s ability to resume parenting within

reasonable period of time, and parent’s role in children’s lives).

Because of father’s lack of notice, the circumstances of father’s relationship

to his children are unknown. Thus, at this stage, it is impossible to

wholly determine the level of communication and interest father has displayed

towards the children and to what extent his absence from their lives is

attributable to his own inaction. See In re A.D.T. , 174 Vt. 369,

377 , 817 A.2d 20, 26-27 (2002) (affirming termination of father’s parental

rights where he had “completely refused to have any relationship with, or to

take responsibility for, his child”); see also In re C.L. , 2005 VT 34,

¶¶ 15-16 , 178 Vt. 558 , 878 A.2d 207 (considering unwed father’s level of

interest and extent of efforts to assert paternity in terminating father’s

rights to child). Nonetheless, prompt notice to father would have allowed

him to present his version of the facts and to have an opportunity to involve

himself in the children’s lives. We can only speculate whether an

appropriate option to meet the best interests of the children may have been to

return them to Sri Lanka.

¶ 60.

I am cognizant that DCF has asked us to take the unusual step of

terminating father’s parental rights without a remand to the family

division. It justifies this request because “Father’s connection to the

children is purely biological; he has played no constructive role in their

lives and there is no indication that he could or would, at any point in the

future, assume a parental role with either of the children.” DCF takes

this position after its lawyer received an email from father that explained his

inability to obtain a visa to come to the United States and that asked:

“Please . . . ask for a long date from the court to enable

me to get a visa and claim my right to my two daughters. I need them and

I love them. Please help me.” In fact, other than the email, there

is no evidence in the record to show whether father could or would assume a

parental role in the future precisely because DCF never investigated the issue

and father had no opportunity to address it.

¶ 61.

In addition to failing to notify father, neither DCF nor the court took

measures to contact Sri Lanka regarding the children, who were—and continue to

be—citizens of that country. As the majority notes, international law

required that the Sri Lankan consulate be notified. See Vienna Convention

on Consular Relations, art. 37, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261

(specifying that receiving state has a duty to notify consulate of foreign

state “where the appointment of a guardian or trustee appears to be in the

interests of a minor” who is a national of the foreign state). While this

notice has now been supplied, pursuant to the treaty, notification should have

been provided as soon as the children were taken into DCF custody.

¶ 62.

On a broad scale, notification is important for maintaining

international comity. See People v. Madej , 739 N.E.2d 423, 431

(Ill. 2000) (McMorrow, J., concurring and dissenting) (emphasizing that “[i]t

is in our own self-interest to uphold the principle of international comity”

regarding consular notification under Article 36 of the Vienna

Convention). This country’s compliance encourages other countries to provide

the same service to American minors within their jurisdictions. “[W]e

cannot expect that the citizens of this country, while abroad, will be afforded

their rights under the Vienna Convention, or indeed, under any treaty, if we do

not afford those same international rights to foreign nationals here in the

United States.” Id . For example, if the situation were

reversed and an American child was taken into custody by a Sri Lankan social

services agency because her American parent was deemed unfit, certainly one

would expect authorities there to contact the American consulate at the

earliest possible time.

¶ 63.

As it relates to this particular matter, notification is important

because it would allow Sri Lanka to assist in locating other individuals who

could act as guardians or custodians for the children, including father.

See In re Adoption of C.M.B.R. , 332 S.W.3d 793, 842 (Mo. 2011) (Wolff,

J., concurring and dissenting) (“We should view the consulates of foreign

governments as sources of help in these situations.”); In re Angelica L. ,

767 N.W.2d 74, 97 (Neb. 2009) (Gerrard, J., concurring) (“This [termination]

case, for instance, might have proceeded far differently had Guatemalan

consular officials been appropriately and actively engaged in the process from

the beginning.”); see generally C. Delphin, Comment, Protecting the

Interests of Foreign-National Minors in the United States Through Consular

Notification , 45 New Eng. L. Rev. 941 , 953-54 (2011). Such

notification is in keeping with the overall philosophy of communication

encompassed in both the UCCJA and UCCJEA. See 15 V.S.A. § 1035

(2010) (under UCCJA court is directed to communicate with other states where

proceedings concerning child are pending); 15 V.S.A. §§ 1068, 1070 (encouraging

communication and cooperation between interested courts under UCCJEA).

This cooperation is the key to avoiding conflicts between jurisdictions.

Importantly, early notification to father and Sri Lanka serves the children’s

best interests by identifying all possible custodians at an early stage,

adjudicating their appropriateness to parent, and thus facilitating a more

expedient resolution of permanency for the children.

¶ 64.

Going forward, if father responds to the notice and elects to participate,

due process demands that he be provided with an opportunity to be heard at the

hearing. 15 V.S.A. § 1033 (2010) (under UCCJA, before an order can

issue, parent must be provided with “notice and opportunity to be heard”).

Father’s actual presence is not, however, required, and his participation

may be satisfied through other means. See Div. of Youth & Family

Servs. v. M.Y.J.P. , 823 A.2d 817, 841-42 (N.J. Super. Ct. App. Div. 2003)

(explaining that procedural requirements for parental termination cases are

heightened, but “do not confer a constitutional right of confrontation or

mandate a parent’s presence at trial” and noting that particular situation may

allow for participation by telephone or deposition).

¶ 65.

To the extent that father seeks to participate remotely, the relevant

law supports this request. The UCCJA states: “In addition to other

procedural devices available to a party, any party to the

proceeding . . . may adduce testimony of witnesses, including

parties and the child, by deposition or otherwise, in another state.” 15

V.S.A. § 1044 (2010); see id . § 1051 (specifying that UCCJA

terms apply to “international area”). [14]

At the prior hearing, the trial court applied Family Rule 17 on telephone

procedures to bar father’s apparent request to appear by telephone because it

was not satisfactorily assured of the adequacy of its technology or of father’s

identity. On remand, I believe these concerns can be easily remedied,

especially given that they are now known in advance. Any technology

concern can be alleviated by scheduling father’s appearance in a properly

equipped courtroom. As to identification of father, the court can satisfy

this requirement in a variety of ways including through the testimony of an

individual, such as mother, who is familiar with father’s voice or by having

father appear in Sri Lanka at a site where an official can confirm father’s

identity based on photographic documentation. With these accommodations

in mind, the trial court can resolve the termination petition in a timely

fashion while still preserving father’s right to meaningful participation.

¶ 66.

As I noted above, I think it more and more likely that our child welfare

system will be required to intervene to protect children who are citizens of

another country and whose parent(s) and other relatives reside in that

country. The system has to protect the rights and interests of a parent

or relative who resides in the foreign country and, importantly, evaluate

whether the interest of the child would be better served by a living

arrangement in the country of the child’s citizenship. Realistically, if

the parent involved in this case is to have a meaningful role in the life of

his daughters, he has to move here or the children must return to Sri

Lanka. I do not underestimate the difficulty of making the best choices

for the children while protecting the interests of foreign parents in these

circumstances. I concur to stress the urgency and importance of overcoming

that difficulty.

¶ 67.

I am authorized to state that Justice Johnson joins this concurrence.

Associate Justice

[1]

Even though there is no indication that mother and father terminated their Sri Lankan

marriage and therefore the legal validity of mother’s second marriage is

questionable, this man is referred to as mother’s husband or the girls’

stepfather throughout this decision.

[2]

Rule 17 states that the court may permit a party “to testify or participate in

a hearing by telephone” provided certain “[n]ecessary [c]onditions” are

satisfied. V.R.F.P. 17(a)(2), (b). Among other things, these

conditions include that there is assurance to the satisfaction of the court of

the caller’s identity, and that the telephone connections and equipment can

adequately enable all parties to hear and speak. V.R.F.P. 17(b)(1), (3).

[3]

R.W. will soon reach the age of majority. The question of whether the

termination petition will become moot once she does is not before us. We

do note, however, that the jurisdiction of the family division will end when

R.W. turns eighteen. 33 V.S.A. § 5103(c).

[4]

We need not, and do not, decide whether status jurisdiction also applies to

custody cases.

[5]

This past session the Legislature repealed the UCCJA and enacted the Uniform

Child Custody Jurisdiction and Enforcement Act (UCCJEA). 2011, No.

29. Under the UCCJEA, a child custody proceeding is specifically defined

to include a proceeding to terminate parental rights. Id .

§ 1, enacted at 15 V.S.A. § 1061(4). The UCCJEA is also more

specific concerning its application to parties outside Vermont. It

explains that “[a] child custody determination made by a Vermont court that had

jurisdiction under this chapter binds all persons who had been served in

accordance with the Vermont laws or notified in accordance with section 1066 of

this title or who have submitted to the jurisdiction of the court, and who have

been given an opportunity to be heard.” 15 V.S.A. § 1064. The

Act specifies that “[p]hysical presence of, or personal jurisdiction over, a

party or a child is not necessary or sufficient to make a child custody

determination.” Id . § 1071(c).

[6]

The statute provides other possible bases for jurisdiction not relevant to the

facts of this case.

[7]

While it is important to satisfy the due process rights of parents, the best

interests of children must also be satisfied. Therefore, as long as the State

uses due diligence to contact parents outside of Vermont, the lack of response

should be no impediment to proceeding with termination if that is in the

children’s best interests.

[8]

We note that mother waived this issue, having neither raised it below nor on

appeal. In any event, failure to give notice to a consulate, even when

required by the Vienna Convention, does not invalidate jurisdiction assumed

without such notice. See In re Stephanie M. , 867 P.2d 706, 712-13

(Cal. 1994).

[9]

According to the U.S. Census Bureau, in 2009, there were 1,865,000 foreign-born

children fourteen years and younger living in the United States. U.S.

Census Bureau, Statistical Abstract of the United States: 2011, at 44 tbl. 40,

available at http://www.census.gov/compendia/statab. In addition, the

Census Bureau reports that in Vermont 3.9% of the population is

foreign-born. Id . at 43 tbl. 38.

[10]

In making statements about notice to father, I am relying on the record before

us. I recognize, however, that the record may be incomplete. For

example, while we had no record that DCF notified father of the pendency of

this appeal until this Court ordered such notice, an affidavit from an

assistant attorney general expressly indicates that she did in fact send a copy

of her brief to father by mail. I would encourage DCF to make all

contacts with father part of the record.

[11]

The record contains no indication that the State tried to serve father with

notice of the CHINS proceeding, even by publication. In its brief, DCF

states: “During all of this time [that the CHINS case was pending], DCF was

unable to ascertain father’s whereabouts, beyond the general fact of his

continued residence in Sri Lanka.” The first action to notify father of

the proceeding shown by the record was the assignment of an investigator from

the Office of the Attorney General to locate father for purposes of notifying

him of the termination hearing. The investigator’s attempt and failure to

locate father is detailed in an affidavit which DCF used to justify notice of

the termination hearing by publication.

[12]

In 2008, the Legislature revised the statutes related to juvenile

proceedings. See 2007, No. 185 (Adj. Sess.), eff. Jan. 1, 2009. The

current statute specifically designates that following an emergency care order,

DCF is required to “make reasonable efforts to locate any noncustodial parent

and provide the noncustodial parent with the emergency care order or

conditional custody order, notice of the date, hour, and place of the temporary

care hearing, and right to counsel.” 33 V.S.A. § 5306. The

statute requires further that: “If the noncustodial parent cannot be located,

[DCF] shall provide to the court a summary of the efforts made to locate the

parent.” Id .

[13]

The Legislature recently repealed the UCCJA and adopted the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA), effective July 1, 2011.

15 V.S.A. § 1096. The UCCJEA states that motions “commenced before

the effective date . . . [are] governed by the law in effect at the time the

motion or other request was made.” Id . Because DCF filed the

petition to terminate father’s rights prior to July 1, 2011, the UCCJA, not the

UCCJEA, applies to father’s termination hearing.

[14]

Even though not applicable to this case, the UCCJEA revisions may be used a

guide for the parties and court given the more explicit instructions on

accommodating a remote party. See 15 V.S.A. § 1063(b) (providing that a

“Vermont court shall treat a foreign country as if it were a state of the

United States” for purposes of applying relevant provisions on accommodation).

For example, documentary evidence from outside the state can be admitted even

if transmitted by technological means not producing an original. Id .

§ 1069(c). In addition, the court may allow the testimony of a

witness located in another state to be taken “by deposition or other means

allowable in Vermont for testimony taken in another state.” Id .

§ 1069(a). Alternatively, an individual in another state may “be

deposed or [permitted] to testify by telephone, audiovisual means, or other

electronic means before a designated court or at another location in that

state.” Id . § 1069(b).