# In re R.W. and N.W.

> Supreme Court of Vermont · November 18, 2011 · 191 Vt. 108

URL: https://www.frixlaw.com/law-library/cases/1043738

## Case

- **Full name:** In Re R.W. and N.W., Juveniles
- **Court:** Supreme Court of Vermont
- **Decided:** November 18, 2011
- **Citations:** 191 Vt. 108; 39 A.3d 682; 2011 VT 124; 2011 Vt. LEXIS 140; 2011 WL 5600636
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Reiber, Dooley, Johnson, Skoglund, Burgess
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1043738

## How later opinions describe it (automated extraction)

- explaining “due process demands that [parent] be provided with an opportunity to be heard at the [termination] hearing” but parent’s “actual presence is not . . . required, and [their] participation may be satisfied through other means”
- explaining that we apply harmless-error standard in termination cases whereunder “error warrants reversal only if a substantial right of the party is affected” (quotation omitted)
- explaining that due process is satisfied by providing notice and opportunity to be heard but parent is not conferred right to be present or to confront witnesses
- stating that Supreme Court applies harmless error analysis in juvenile cases, and will reverse judgment only where error has affected substantial rights of party
- holding that in termination-of-parental-rights proceeding “an error warrants reversal only if a substantial right of the party is affected” (quotation omitted)

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1043738. Public record. Not legal advice.