Court may adjudicate termination of parental rights without personal jurisdiction over non-resident parent.

AuthorGiordano, Christina M.

In re R.W., 39 A.3d 682 (Vt. 2011).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)--adopted by the Vermont legislature--regulates how states collaboratively assert jurisdiction over custody cases involving diverse parties. (1) Attorneys and academics alike have debated whether custody disputes require personal jurisdiction over both parents in order to meet constitutional due process requirements. (2) In In re R.W., (3) the Vermont Supreme Court evaluated the merits of requiring personal jurisdiction over father in order to allow a termination of parental status proceeding against him. (4) The court held that although father did not have minimum contacts with the State of Vermont and could not meet personal jurisdiction requirements, these standards remained inapposite where the court had status jurisdiction over father's children. (5)

Mother and father married in Sri Lanka in 1992 and had two daughters there, R.W. and N.W. (6) Mother moved to New York in 2000, and remarried and moved to Vermont in 2003 with R.W. and her new husband. (7) N.W. moved to Vermont soon after. (8) In 2006, based on R.W.'s disclosure of incidents of physical and sexual abuse from her mother and stepfather, DCF obtained custody of R.W. and N.W. through an emergency detention order issued by the court, and placed the girls in a foster home. (9) At this time, both DCF and the court failed to notify father or the Sri Lankan consulate regarding the termination proceedings. (10) DCF allowed the girls to live with their mother almost full time until March 2009, when DCF again placed the girls in foster care for lack of adequate supervision. (11)

In September 2009, DCF sought to terminate mother's and father's parental rights. (12) Around March 2010, DCF received permission from the court to serve father by publication after claiming that it had unsuccessfully attempted to contact him. (13) R.W. contacted father via email, causing father to contact the court and ask to participate in the termination proceedings by phone. (14) The court did not allow father to participate in the proceedings by phone, because it could not ensure that his identity was correct or that the quality of the telephone communication would allow all parties to participate effectively. (15) Following the court's termination of mother's parental rights, DCF requested that the court assume jurisdiction over and allow father's termination petition, but this request was denied, and the denial appealed. (16) Ultimately, the court held that it did not require personal jurisdiction over father to adjudicate a termination proceeding, because a termination proceeding adjudicates a child's status, which falls within the "status exception" to the minimum contacts requirement set forth in International Shoe. (17)

Case law has been notably inconclusive and vague regarding how the term "jurisdiction" is used in custody issues. (18) In states requiring personal jurisdiction, courts have struggled in exerting "purposeful availment" and "minimum contacts" tests in order to assert jurisdiction over non-resident parents. (19) Other states have cited the status exemption in order to adjudicate custody and termination proceedings. (20) Still other states have turned to quasi in rem jurisdiction over children as "objects" in the state. (21)

Since the establishment of Pennoyer v. Neff as a cornerstone of American jurisdictional jurisprudence, scholars and courts alike have debated the merits (or lack thereof) of the status exemption to personal jurisdiction requirements. (22) While the marriage status exemption, first introduced in Pennoyer, has been affirmed and reaffirmed in modern jurisprudence, many decisions have affirmed the separation of status-related claims from claims involving the apportionment of money or goods, such as alimony. (23) The Supreme Court of the United States has ruled consistently regarding such split decisions, noting that status based adjudications do not require personal jurisdiction, whereas monetary or possession based transactions require the parties to maintain certain minimum contacts with a forum. (24) The sharp contrast between the complete lack of personal jurisdiction required for status exempt claims and

the nebulous showing of minimum contacts required for personal jurisdiction claims understandably breeds much confusion when choosing the correct form of jurisdictional analysis. (25)

Given the confusion over jurisdiction, the Supreme Court initially attempted to clarify jurisdictional problems arising between states in May v. Anderson, but it instead further muddled the kinds of jurisdictional analysis performed by states in resolving custody disputes. (26) In response to the varied interpretations and applications of May, scholars created yet another set of child custody standards--the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA)--which were again not uniformly interpreted among states. (27) Moreover, the UCCJA caused courts to assume without question that the UCCJA met due process standards without any kind of analysis. (28) Ultimately, the Jurisdiction Enforcement Act (UCCJEA) was born out of the ashes of the UCCJA and PKPA, in an effort to finally clarify and streamline determinations of jurisdiction and choice of law in custody disputes. (29)

In In re R.W., the Supreme Court of Vermont held that, under the UCCJEA, Vermont had status-based jurisdiction over a termination of parental status proceeding, even if father had no contacts with Vermont. (30) Likening termination cases to a marriage relationship, the court first determined that termination proceedings generally are adjudications of status, and thus exempt from personal jurisdiction requirements. (31) Then, the court applied statutory and constitutional standards to determine whether the court in this particular case had authority to exercise jurisdiction. (32) In reviewing the statutory authority, the court reasoned that the UCCJA--now the UCCJEA--allows jurisdiction over custody claims such as termination proceedings through the child's connection with the forum. (33) The court then went into a due process analysis, looking to the fairness of assigning Vermont as a reasonable forum and denying the need to engage in a minimum contacts analysis. (34) Deciding that the children and the State had strong interests in adjudicating the claim, the court held that the exercise of jurisdiction over father's termination was reasonable and not burdened by another State's or country's interests. (35)

The court's application of the jurisdictional marital status exemption to termination of parental status proceedings remains questionable because it neglects to consider the inherent differences between marital and parental relationships. (36) The court largely ignores the spirit of May, as have many other courts, and effectively distinguishes away May's personal jurisdiction requirement simply because a termination of parental status hearing is not a custody proceeding. (37) Yet, a mere eight paragraphs later, the court asserts that a termination proceeding falls within the UCCJA's definition of "custody proceeding." (38) Justification even for the existing marital status exception is doubtful at best and seems to be implied in modern jurisprudence solely because of extensive precedent. (39)

Although the court's reasoning regarding...

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