Friday, October 4, 2013

Appeals. Court rules prospectively that CHINS decision is final order that must be immediately appealed, even though disposition hearing is still pending.


Vermont's child abuse and neglect proceedings have a bifurcated nature. See In re L.S., 147 Vt. 36, 38, 509 A.2d 1017, 1019 (1986).   First, there is a merits adjudication during which the State must prove the allegations in the CHINS petition, and the court must find by a preponderance of the evidence whether the child is abused or neglected. See 33 V.S.A. § 5315. Second, there is a disposition hearing, which decides the terms of the child's placement and protection. Id. § 5318(a). In this case, a merits decision was entered on July 25, 2012, a disposition order was entered on October 11, 2012, and Father filed a notice of appeal on November 8, 2011, seeking to appeal both the merits and the disposition orders. The timeliness of father's appeal depends on two questions: whether a CHINS merits decision is a final appealable order and whether failure to appeal that decision within thirty days forecloses the right to later challenge it. We conclude that the merits decision is a final order and that failure to bring an appeal of that order within thirty days bars subsequent challenges to the order. Under the circumstances of this case, however, we apply our decision prospectively and reach the merits of father's appeal.

Generally, the test for finality is whether an order has disposed of all matters before the court by settling the rights of the parties. See In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002); In re Petition No. 152 by Cent. Vt. Ry., Inc., 148 Vt. 177, 178, 530 A.2d 579, 580 (1987). Although a CHINS determination does not permanently resolve the child-neglect proceeding, finality in juvenile proceedings is measured differently from other types of cases.  Because the policy of resolving the child's status as quickly as possible, we hold the merits adjudication is a final appealable order.  In this case, father appealed beyond the thirty-day time frame, and therefore his appeal of the CHINS decision was untimely.

Father argues that this Court has routinely allowed appeals of the merits after disposition, and that he should not be punished for relying on those cases. We recognize that our jurisprudence regarding the appropriate time to appeal CHINS determinations has not been consistent and that the obligation to immediately appeal the decision was not evident. In these circumstances it would be fundamentally unfair to foreclose father from appealing the merits decision where important rights are at stake. See In re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (reaching merits of parent’s untimely appeal of termination order given important rights at stake). We, therefore, apply our decision prospectively only, and reach the merits of father's appeal.