In re D.T.

Dooley, J.,

dissenting. A major purpose of the Uniform Child Custody Jurisdiction Act (UCCJA) is to “assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and . . . that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” 1979, No. 136 (Adj. Sess.), § 1(3). By limiting jurisdiction to the state with the closest connection to the family, we prevent forum shopping and continuing controversy over jurisdiction, promote cooperation between the courts of the various states and ensure that custody is *159determined in the state that can best decide the case in the interest of the child. Today, the majority decides that a Vermont court may exercise jurisdiction over a family that has been in this state for nine days, and, in doing so, silently overrules our precedent and defeats the major purposes of the statute. I therefore dissent.

The UCCJA provides four bases for jurisdiction in child custody cases. See 15 V.S.A. § 1032(a)(1)-(4). I agree with the majority that Vermont is not D.T.’s home state. See 170 Vt. at 152, 743 A.2d at 1081; 15 V.S.A. § 1032(a)(1) (home-state jurisdiction). I agree with the majority that the family court cannot proceed to merits adjudication and disposition in a CHINS case under the emergency-jurisdiction provision because this provision allows only a temporary emergency order until the proper forum is determined. See 170 Vt. at 155, 743 A.2d at 1083; 15 V.S.A. § 1032(a)(3) (emergency jurisdiction). And I agree with the majority that the family court’s findings are not adequate to support its conclusion that it may exercise significant-connections jurisdiction. See 170 Vt. at 153, 743 A.2d at 1082; 15 V.S.A. § 1032(a)(2) (significant-connections jurisdiction). Finally, the record reveals no basis for concluding that no other state has jurisdiction, nor that any other state has declined jurisdiction. See 15 V.S.A. § 1032(a)(4) (no-other-state jurisdiction).

I do not agree, however, that the current record allows us to find significant-connections jurisdiction on appeal. Because there is no ground for asserting jurisdiction consistent with the UCCJA in this case, I would vacate the merits decision, and remand to the family court to enter a temporary emergency-jurisdiction order until it develops a record necessary to determine the state with the closest ties to this family. See In re Adoption of Baby Girl B., 867 P.2d 1074, 1080 (Kan. Ct. App. 1994) (remanding for further development of record to determine jurisdiction under UCCJA).

For purposes of determining jurisdiction, the parties stipulated to the facts alleged in the affidavit submitted with the CHINS petition as follows. D.T. was born prematurely on April 9,1998, in Worcester, Massachusetts. D.T remained at the hospital on a ventilator for two months and then was released to his parents on June 9,1998. Mother, father and child left directly from the hospital to Vermont where they had arranged to five temporarily with father’s ex-wife. On June 16, 1998, D.T. was hospitalized in Vermont due to continued respiratory problems. On June 18, 1998, the parents were homeless; SRS took custody of D.T. and filed a CHINS petition while D.T. was still in the hospital.

*160Mother has three other children who have been in the custody of the State of New York since 1985, when her husband was charged with molesting them. Father has been accused of sexually abusing a female child in New York. Father’s parental rights to two children he had with his ex-wife have been terminated in Vermont. The Vermont healthy-baby coordinator strongly believed that father was considering leaving Vermont with mother and D.T. to join friends in Tennessee, New York or Massachusetts. Beyond the CHINS affidavit, the parties stipulated to the additional facts that the parents were in Vermont temporarily and had not decided to leave.

On June 19,1998, the court held a detention hearing and temporary custody was granted to SRS, although D.T. remained in the hospital. As soon as counsel was appointed for the parents, they filed a motion to dismiss for lack of jurisdiction. On July 22, 1998, the court held a hearing, at which no evidence was taken. The court ruled from the bench based on the stipulated facts, concluding that it could exercise jurisdiction under either the significant-connections provision or the emergency provision of the UCCJA. See 15 V.S.A. § 1032(a)(2), (3). It found that the petition alleged an emergency and sufficient contacts to exercise jurisdiction because (1) the child was in the state receiving medical treatment, (2) the parents were in the state, (3) the court was not informed of any proceeding pending in another state, and (4) the court was not aware of any other state that would be a more convenient forum.

As the majority holds, the family court’s findings do not support significant-connections jurisdiction in Vermont. See 170 Vt. at 153, 743 A.2d at 1082. Contrary to the majority, I would further hold that the facts to which the parties stipulated do not support significant-connections jurisdiction in Vermont. “The criteria supporting jurisdiction under the UCCJA must be present at the time of the initiation of the particular custody proceeding, and whatever occurs after that time is irrelevant to the initial inquiry into jurisdiction.” Peloso v. Botkin, 144 Vt. 461, 464, 479 A.2d 156, 158 (1984) (citations omitted); accord Adoption of Zachariah K., 8 Cal. Rptr. 2d 423, 428 (Ct. App. 1992) (subject matter jurisdiction under UCCJA is determined at time action is commenced); In re A.E.H., 468 N.W.2d 190, 200 (Wis. 1991) (jurisdictional requirements under UCCJA must be met at commencement of proceeding). Thus, we are required to examine the facts as of June 18, 1998, when SRS took custody of D.T. and filed a CHINS petition. At that time, the family had been in Vermont nine days.

*161“Short-term presence in the state is not enough [to exercise significant-connections jurisdiction] even though there may be an intent to stay longer . . . Uniform Child Custody Jurisdiction Act § 3 cmt., 9 U.L.A. 145 (1988); accord Brossoit v. Brossoit, 36 Cal. Rptr. 2d 919, 927 (Ct. App. 1995) (short-term connections in one state are insignificant when compared with connections established over years in another); Horlander v. Horlander, 579 N.E.2d 91, 97 (Ind. Ct. App. 1991) (less than two months is short-term presence insufficient to confer significant-connections jurisdiction); Davidson v. Davidson, 485 N.W.2d 450, 456-57 (Wis. Ct. App. 1992) (short-term presence of less than four months did not confer significant-connection jurisdiction); see also Peloso, 144 Vt. at 464-65, 479 A.2d at 158 (temporary ■visits do not establish significant connections). In this case, the record shows that the family had merely a short-term presence in Vermont and had not decided to leave. The temporary presence in Vermont does not support significant-connections jurisdiction in Vermont.

In construing the UCCJA, it is important to consider decisions in other states because the Act was intended to “make uniform the law of those states which enact it.” 1979, No. 136 (Adj. Sess.), § 1(9). Section 1032(a)(2), the significant-connections provision of the UCCJA, states that a Vermont court has jurisdiction to decide child custody if:

(2) it is in the best interest of the child that a court of this state assume jurisdiction because
(A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and
(B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships^]

(Emphasis added.) Construing this provision consistently with decisions from other states, I cannot find sufficient evidence in the record that either prong is met.

In determining whether a child less than six months old and at least one contestant have a significant connection to the state, courts have considered (1) where the parents have lived during the last several years, (2) where the child was conceived and brought to term, (3) where the child was born, (4) where the child’s siblings live, (5) where the grandparents live, and (6) the state that paid expenses associated with birth. See, e.g., State ex rel. R.P. v. Rosen, 966 S.W.2d 292, 301 *162(Mo. Ct. App. 1998) (considering where child was born, where parents lived for past considerable period of time, state that paid Medicaid expenses associated with birth); Mazur v. Mazur, 621 N.Y.S.2d 817, 820 (App. Div. 1994) (considering where parents lived for past several years, where parents are residing, where siblings and grandparents live); State ex rel. W.D. v. Drake, 770 P.2d 1011, 1013 (Utah Ct. App. 1989) (considering where parents lived in past several years, where child was conceived and carried to term, and where child was born).

Most of this information is not in the record in this case. Nothing in the record indicates that mother had any connection with Vermont when SRS took custody of D.T., except that she was present here nine days. We do not know whether mother or father had ever been to Vermont before June 9, 1998, or had any other connections to Vermont, other than father’s ex-wife’s residence. This is not to say that this family does not have significant connections with Vermont, but simply that the record does not support such a conclusion. Moreover, the record is so sparse that it does not reveal significant connections to any other state. Cf. Davidson, 485 N.W.2d at 456 (significant contacts with Iowa include parents were born in Iowa, married in Iowa, have siblings and parents in Iowa and witnesses to testify to parenting skills are in Iowa; minimal contacts in Wisconsin were established in four-month stay).

In determining whether there is substantial evidence in the state concerning the present and future care of a child, courts have considered (1) where there is evidence of the marital relationship, the parents’ mode of living and psychological make-up, (2) where there is evidence concerning the parents’ ability to care for siblings and relationships with siblings, (3) where parental rights to previous children have been terminated and which proceeding was the most recent, and (4) where there are school or day-care records, medical records and evidence concerning other familial relationships. See Rosen, 966 S.W.2d at 301 (considering state that most recently took custody of siblings had evidence of father’s sexual abuse of siblings, mother’s failure to protect them, and parents’ domestic abuse and substance abuse problems); State ex rel. Phelan v. Davis, 965 S.W.2d 886, 890 (Mo. Ct. App. 1998) (day-care and medical records not in evidence cannot show significant connections); Drake, 770 P.2d at 1013 (considering information concerning parents’ mode of living, psychological make-up, marital relationship, parenting skills and relationship with sibling).

Most of this information is not in the record in this case. We know that Massachusetts has the bulk of D.T.’s medical records, New York *163has custody of three of mother’s children, and Vermont terminated father’s parental rights to two children. Both Vermont and New York may have substantial evidence of the parents’ ability to care for D.T., while Massachusetts has most of the information concerning the care D.T. needs. It would be helpful to know if either the Vermont or New York proceedings were recent. See Rosen, 966 S.W.2d at 301 (although mother had parental rights to three children terminated in Kansas, Missouri has since taken jurisdiction of mother’s six other children and thus has more recent evidence of parenting skills). It would also be helpful to know where the parents lived during the last few years. The record lacks the facts necessary to decide whether there is substantial evidence concerning the present and future care of the child in Vermont or any other state.

The majority’s analysis under § 1032(a)(2) is lacking in several respects. The first prong requires that the child and at least one contestant have significant connection with Vermont. The majority apparently concludes that D.T. has significant connections with Vermont, a conclusion with which I will not dispute, but fails to find a contestant with significant connections to Vermont. This is not surprising because the record does not support a finding that any contestant has significant connections to this state. Second, in examining the evidence in Vermont concerning D.T.’s present and future care, the majority focuses almost exclusively on the period after D.T.’s birth and largely ignores the evidence concerning this family prior to that date. Where the child is only a few weeks old, the parents’ connections to various states are the critical inquiry, and the evidence concerning the parents prior to the birth may be highly probative of their ability to care for D.T. In this case in particular, this evidence is important because D.T. was in the parents’ care for only seven days. Finally, the majority cites no authority to support its narrow significant-connections analysis, although the UCCJA is intended to “make uniform the law of those states which enact it.” 1979, No. 136 (Adj. Sess.), § 1(9).

Rather than examining the brief period of D.T.’s life, and focusing on the seven days mother and father cared for D.T. in Vermont, a determination of significant-connections jurisdiction requires a longer view of the family ties to various states and broader view of evidence that is relevant to “the child’s present or future care, protection, training, and personal relationships.” 15 V.S.A. § 1032(a)(2). There are enough clues in this record to tell us that more information is necessary to determine the jurisdictional question; Vermont, New *164York and Massachusetts all have some ties to this family. Developing the record and giving full consideration to the family’s connections to various states will result in exercising jurisdiction in the best interest of the child. See Uniform Child Custody Jurisdiction Act § 3 cmt., 9 U.L.A. at 145 (best interest of child “is served when the forum has optimum access to relevant evidence about the child and family”) (emphasis added).

Until today, this Court has construed the UCCJA to promote its purposes as declared by the Vermont Legislature, following the comment of the Commissioners on Uniform State Laws. The UCCJA is intended to limit jurisdiction to the state with the closest connection or strongest ties to the family and the most evidence relevant to the family. See 1979, No. 136 (Adj. Sess.), § 1(3). The comment to the UCCJA further provides: “The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.” See Uniform Child Custody Jurisdiction Act § 3 cmt., 9 U.L.A. 145 (emphasis added). We adopted these tests in our case law. See, e.g., Peloso, 144 Vt. at 465, 479 A.2d at 158 (requiring “optimum access” to evidence and “maximum rather than minimum contact” with state to exercise significant-connections jurisdiction); see also In re Cifarelli, 158 Vt. 249, 253, 611 A.2d 394, 397 (1992) (if no home state exists, UCCJA limits jurisdiction to state with “strongest contacts with the child and the child’s family”). Most other jurisdictions have also adopted these tests from the Commissioners’ comment to the uniform law. See, e.g., Zachariah K., 8 Cal. Rptr. 2d at 429 (jurisdiction in state with “closest connections”); L.G. v. People, 890 P.2d 647, 656 (Colo. 1995) (closest connection and maximum amount of evidence).

More than any other section of the UCCJA, the significant-connections provision must be “interpreted in the spirit of the legislative purposes.” Uniform Child Custody Jurisdiction Act § 3 cmt., 9 U.L.A. at 145. Although phrased in general terms to be flexible, “its purpose is to limit jurisdiction rather than to proliferate it.” Id. Thus, we must “guard . . . against too liberal an interpretation,” always keeping in mind the purposes of the statute. Id. Requiring maximum contacts and optimum access to relevant evidence about the child and family ensures that determination of child custody occurs in the state with the closest connection. The majority’s ruling defeats this legislative purpose by requiring that Vermont have only short-term, minimum contacts with the child and family to exercise jurisdiction.

*165The UCCJA also seeks “to prevent forum-shopping.” In re A.L.H., 160 Vt. 410, 415, 631 A.2d 1288, 1291 (1993). For example, in Drake, mother left California and travelled to Utah when she was eight months pregnant because there was a proceeding to terminate her parental rights to another child pending in California. See Drake, 770 P.2d at 1012. The Court of Appeals of Utah properly declined jurisdiction over WD. because California had the closest connections to the family and substantial evidence concerning the parents’ ability to care for him. See id. at 1013-14. Under the majority’s ruling today, the short-term presence in Utah would be enough for Utah to exercise jurisdiction, thus allowing precisely the forum-shopping the UCCJA was designed to prevent. There may not be forum-shopping in this case, but we have now opened the door for it in the future.

The UCCJA is also intended to promote cooperation with the courts of the other states to expand the exchange of information to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child. See 1979, No. 136 (Adj. Sess.), § 1(2), (8). I recognize that applying the UCCJA in juvenile cases presents some additional concerns not present in divorce cases because a Vermont court exercising temporary emergency jurisdiction cannot rely on the out-of-state parent to commence proceedings in the other state and arrange for communications between the two courts. Cf. A.L.H., 160 Vt. at 412, 631 A.2d at 1289 (parents filed action in South Carolina court against social services, asking court to assume jurisdiction while Vermont court exercised temporary emergency jurisdiction). Thus, the court must rely on SRS in such cases to communicate with the social services agency in the other state to bring the matter before the court in that state. In the past, we have encouraged both SRS and the family courts to communicate with their counterparts in the other state whenever they are alerted that a jurisdictional issue is present. See In re B.C., 169 Vt. 1, 11-12, 726 A.2d 45, 52-53 (1999). If the Massachusetts and New York courts had been contacted, they might well have declined jurisdiction, and Vermont could have exercised jurisdiction under § 1032(a)(4) (other states have declined jurisdiction) consistently with the purposes of the Act. By affirming this decision, the majority approves the actions of SRS and the family court, thus discouraging communication in the future.

Additionally, under the majority’s ruling, parents who briefly enter Vermont may be forced to move to Vermont or lose their children, although the family may have lived in another state all their lives. In *166B.C., mother’s refusal to move from Massachusetts to Vermont to follow through with visitation and case plan services resulted in her termination of parental rights. See B.C., 169 Vt. at 3, 726 A.2d at 48. This may be the exact situation here; mother may be required to move to Vermont, a state with which she has no connection other than a temporary nine-day presence. The UCCJA was not intended to have such dire consequences for families.

Finally, I believe the majority opinion raises some broader concerns we should confront explicitly. I think this case vividly demonstrates why we have a UCCJA; it responds to years of child-custody-jurisdiction wars and decisions by courts with inadequate information, often in conflict with informed decisions by courts with the proper information. The merits decision here shows that, for whatever reason, we have in Vermont a child who desperately needs state intervention, protection and services. We pride ourselves in having a proactive family court. Many would say that jurisdiction is a quibble — let’s act to protect this child!

One of the hardest choices that confronts us is between optimum justice for the litigants in the case before us and the development of legal rules to govern all cases. Courts do not assert jurisdiction over custody disputes for bad reasons — to deprive some other state of the opportunity to obtain jurisdiction. As in this case, they do so for very good reasons — to protect a child. But the long-term consequence of allowing this reason to control is that we abandon the rules designed to ensure that custody disputes are decided in the best forum.

This case also shows there are serious collateral consequences to a policy of easy long-term intervention. After only nine days in the state, this family has now become a very expensive addition to the public social services caseload of Vermont, and the family is forced to move to Vermont if the parents want reunification, a goal also of SRS. Instead, we can authorize emergency intervention and require a thoughtful process of comparison of which state has the best information and connection for the long-term decisions of this family, in the best interest of the child. Our failure to do so sends an unfortunate message that jurisdiction is, in the end, a quibble.

In summary, this Court should construe the significant-connections provision of the UCCJA consistent with the statutory purpose to limit jurisdiction to the state with the closest connections, a determination that cannot be made on the record before us. See Uniform Child Custody Jurisdiction Act § 1 cmt., 9 U.L.A. 124 (Act shall be construed to promote its purposes). By upholding the family court’s *167decision in this case, the majority condones the trial court’s failure to develop an adequate record, failure to communicate with the courts in Massachusetts and New York, and failure to determine the state with the closest ties to the family, thus, defeating the major purposes of the UCCJA. See 1979, No. 136 (Adj. Sess.), § 1(2), (3), (8) (declaring purposes of UCCJA to promote cooperation between courts and exchange of information to ensure state with closest ties to family decides child custody matter). Because I would reverse the family court’s decision on jurisdiction, I would not reach the second issue concerning the merits decision raised by D.T.’s parents.

I am authorized to state that Justice Johnson joins in this dissent.