In re A.W.

Robinson, J.,

¶ 29. concurring. I concur completely in the majority’s opinion. I write separately to make two points. First, the consequences of the delay in resolving the ongoing jurisdictional issues in this case could have been tragic. The CHINS petition was filed on October 5, 2012. The request for an emergency care order was filed on October 8, 2012, and the order issued shortly thereafter. Mother’s first motion to dismiss for lack of jurisdiction was filed on December 4, 2012. The trial court subsequently issued several entry orders raising doubts about its own authority to continue to assert jurisdiction and urging the parties to take steps to initiate a proceeding in New York. However, the trial court did not on its own take steps to contact the New York court or courts in which the proceedings referenced in the parties’ various pleadings were initiated, see 15 V.S.A. § 1074(d), and did not dismiss the action. The jurisdictional question was not definitively resolved by the trial court until September 17, 2013, nearly a year after the child was removed from his parents. During that year, the child lived with his paternal grandparents in Vermont, and parents’ ability to demonstrate their compliance with DCF’s requirements, and to build bonds with the child, were significantly constrained by geography and life circumstance. Had the trial court’s earlier instincts that it lacked continuing jurisdiction proven correct, the trial court would have been in the position of removing the child from the only home and parent figures he had truly known for the first year of his life, and returning him to parents with whom he had visited weekly, but had not lived since he was three weeks old. If they deemed it appropriate, New York authorities would have then started the whole process from scratch.

¶ 30. Although the reason for nearly a full year’s delay in deciding the question is not entirely clear from the record, it seems to be the result of a series of decisions, actions, and *241inactions by the parties and the court rather than a single identifiable failing. Moreover, it is clear that the trial court acted, or refrained from acting, in part due to concern for the well being of the dependent child over whose welfare the court had ultimate decisionmaking authority. In the absence of a plan to provide for the child’s welfare, the court was reluctant to simply dismiss the case. And, of course, as more time passed, the prospect of such a precipitous transition no doubt felt more untenable.

¶ 31. The Legislature has recognized the risk of dragging out these jurisdictional challenges, and has specifically instructed that “[i]f a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.” 15 V.S.A. § 1065. Although it is not clear that the parties aggressively sought priority in scheduling, it is clear that the jurisdictional question in this case was not handled expeditiously.

¶ 32. This was not the first, and won’t be the last CHINS case involving thorny issues under uniform child custody laws. See, e.g., In re C.P., 2012 VT 100, 193 Vt. 29, 71 A.3d 1142 (CHINS case involving parents living in New York and child who had been staying with an aunt in Vermont prior to the CHINS petition). Going forward, I urge everyone in the process — the State, counsel for parents and children in CHINS cases, court staff, and judges — to be vigilant about bringing such jurisdictional questions to a speedy resolution.

¶ 33. My second point goes to father’s argument that the trial court abused its discretion in failing to decline to exercise jurisdiction on the ground that Vermont is an inconvenient forum. 15 V.S.A. § 1077. For the reasons set forth in the majority’s opinion, I believe the trial court’s decision to exercise its jurisdiction was within its broad discretion. But I also want to emphasize that had the trial court dismissed this case on inconvenient forum grounds, I would have sustained that decision as well. A host of factors would have supported such a decision. The financial circumstances of the parties were such that travel to Vermont to participate in these proceedings was and is no doubt burdensome, id. § 1077(b)(4), and much of the evidence required to resolve the litigation was and is largely in New York, where the parents lived and availed themselves of services designed to improve their parenting capabilities, id. § 1077(b)(6).

*242¶ 34. More significantly, the decision to move forward in Vermont created an immediate obstacle to the goal of reunification — an obstacle the parents no doubt continue to face as this case has moved from merits to disposition. See 33 V.S.A. § 5101(a)(3) (stating that one purpose of juvenile judicial proceedings is to “preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety”). Given the limitations of time, as well as financial and transportation limitations, parents’ ability to travel to Vermont with the frequency necessary to build their relationship with their child is tenuous. They are no doubt expected to successfully engage in a host of services designed to address the issues that gave rise to this petition in the first place. The tasks associated with that critical personal work, combined with travel to and from Vermont to spend time with their child, could take up all their time and effort, leaving little capacity for employment, and steep barriers to success. That is not a recipe for smooth reunification.

¶ 35. I realize that the prospect of dismissing a CHINS petition, in the face of allegations that a child’s welfare is at risk with his or her parents, may seem untenable. But I have confidence that Vermont is not the only state with attentive and concerned child protection professionals ready to take necessary steps to protect a child’s well being. In fact, in this case the record reflects that New York’s Department of Social Services (DSS) — New York’s DCF analog — was well aware of this family. Although the record does not provide definitive evidence on this point, it appears that the reason the New York authorities discontinued their own engagement with this case was that Vermont had assumed jurisdiction.

¶ 36. Moreover, had the trial court decided to decline to exercise its jurisdiction, it could have ensured an orderly transfer by setting a date certain for its dismissal that left sufficient time for New York authorities to initiate a proceeding in that state and secure an interim order of some sort if they so desired. The trial court tried to do this at one point, ordering defendants to take action to transfer the case to New York and indicating that Vermont would maintain jurisdiction until that occurred. In the absence of a date certain for dismissal of the case, and given Vermont’s continued retention of jurisdiction, it is disappointing but not surprising that New York’s DSS apparently declined to initiate a proceeding in New York.