SCOVT dismisses appeal from non-final order requiring DCF to submit a new case plan.

In re C.P. & L.P., Juveniles 2019 VT 62 (mem) [filed 8/26/2019]

Juveniles C.P. and L.P. filed a notice of appeal of the family division’s order, following a permanency planning hearing, rejecting the parties’ proposed case plan that would have modified the original disposition order and requiring the Department for Children and Families (DCF) to submit a new case plan. We conclude that the order being appealed was not a final appealable order and therefore dismiss the appeal

The May 14 order was not a final appealable order because the  order did not modify the original disposition order. Nor did the court conclusively determine all matters before it at the permanency hearing. See In re D.D., 2013 VT 79, ¶ 22, 194 Vt. 508, 82 A.3d 1143 (“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.”). 

Rather, the court rejected DCF’s permanency recommendations, directed DCF to prepare and submit a new case plan, and set the matter for further hearing to review the new plan. Cf. In re G.B., Juvenile, 2019 VT 48, ¶ 9 (concluding that order denying petition to terminate mother’s parental rights was not final appealable order because, rather than finally resolving the status of mother’s parental rights, it directed DCF to prepare new case plan).

Under the particular circumstances of this case, the order being appealed was not a final order to which they had a right to appeal. Appeal dismissed.

How cited

SCOVT affirms denial of Rule 60 motion as untimely, because underlying order was final even though it expressly remained subject to a motion to reopen.

In re Purvis Nonconforming Use , 2019 VT 60 [filed 8/30/2019]

ROBINSON, J. Luke Purvis appeals the Environmental Division’s denial of his motion for relief under Vermont Rule of Civil Procedure 60(b)(1) and (2). He argues that his motion is not time-barred because the order from which he seeks relief was not actually a final judgment entered more than a year before he filed his motion. We affirm.

Rule 60(b)(1) authorizes relief from judgment for "mistake, inadvertence, surprise, or excusable neglect," and 60(b)(2) allows relief from judgment on account of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial." A motion under Rule 60(b)(1) or Rule 60(b)(2) must be filed "not more than one year after the judgment, order, or proceeding was entered or taken." V.R.C.P. 60(b).

The parties filed a Stipulated Order, which the court entered on September 26, 2016, dismissing the matter without prejudice to the rights of either party to request that the Court reopen it.  The Order gave the parties until August 1, 2017 to file a Motion to Re-open. If no such filing is made, the “ the appeal period for said decision shall be deemed to have expired."

In March of 2018, Purvis moved for relief from the Stipulated Order pursuant to Vermont Rule of Civil Procedure 60(b)(6). Purvis  argues the September 2016 Order was not  final for purposes of calculating the one-year period for filing a Rule 60(b)(1) and (2) motion, because  the Order remained subject to a motion to reopen until August 2017.

 In determining whether an order is final, "our test [is] that a judgment is final when it makes a final disposition of the subject matter" such that there are no "outstanding issues to be decided." Russell v. Russell, 157 Vt. 295, 301, 597 A.2d 798, 802 (1991); see also Gregoire, 2015 VT 36, ¶ 19 ("A final order is one that ends litigation on the merits or conclusively determines the rights of the parties, leaving nothing further for the court to do but execute the judgment."). 

The Stipulated Order disposed of the issues in the case, leaving none outstanding to be decided. While it left the parties a window of time in which they could move to reopen, it left nothing for the court to do.  The parties expressly structured the Stipulated Order as a final order effective in September 2016 in the event that no party sought to reopen it. 

Accordingly, we conclude the Stipulated Order was a final order when entered on September 26, 2016.

The Stipulated Order was procedurally unorthodox, and litigants and courts would be well advised not to follow its model. Nonetheless, the provision clearly signifies the parties’ intent, reflected in the court’s Order, that in the absence of a filing by August 1, 2017 the Order should be deemed final as of September 26, 2016.

 Given this conclusion, the Environmental Division was correct in holding motions under Rule 60(b)(1) and (2) were untimely because they fell outside of the one-year deadline.

The court did not err in denying Purvis’s motion to reconsider.

How cited

SCOVT dismisses parental rights appeal for lack of a final judgment.

In re G.B., Juvenile, 2019 VT 48 [Filed  07/12/2019]

REIBER, C.J. Juvenile G.B., born in June 2017, appeals the court’s order denying his petition to terminate mother’s parental rights and directing the Department for Children and Families (DCF) to prepare a new disposition plan for mother. We dismiss the appeal for lack of a final judgment.

The court concluded, that mother was ready, willing, and able to resume a constructive role in G.B.’s life and that she “should be given the opportunity over the next six months to reunify with G.B.” Therefore, the court denied the petition to terminate mother’s rights. The court explained that the case was “still at disposition” and directed DCF to prepare a new disposition plan in light of the court’s decision. ¶ 7. G.B. then filed a notice of appeal from the denial of the petition to terminate mother’s rights.

As a threshold question, we address mother’s motion to dismiss the appeal for lack of a final judgment. 

“An appealable order is one that finally disposes of the matter before the court by settling the rights of the parties on issues raised by the pleadings.” In re A.D.T., 174 Vt. 369, 373, 817 A.2d 20, 24 (2002). In juvenile proceedings, the statute provides that disposition orders are final orders. 33 V.S.A. § 5318(d); see id. § 5315(g) (providing that merits adjudication is not final order subject to appeal). This Court has explained that where the court terminates one parent’s rights, the order severs the legal relationship between that parent and the child and the order can be appealed as a final judgment, even if the rights of another parent are unresolved. In re A.D.T., 174 Vt. at 373-74, 817 A.2d at 24 (explaining that each petition to terminate “commences a new and separate proceeding”).

The order juvenile seeks to appeal in this case—the denial of the petition to terminate mother’s rights—is not final because it was neither a final judgment nor a disposition  order. The order denying termination of mother’s rights did not finally resolve the status of mother’s parental rights and therefore was not a final judgment. The family court specifically declined to issue a disposition order, indicating that the case was “still at disposition” and directing DCF to prepare a new case plan for G.B. Therefore, there was no disposition order to appeal. As we have explained, orders entered pending final disposition are “generally unappealable.” In re I.B., 2016 VT 70, ¶ 7, 202 Vt. 311, 149 A.3d 160.

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

  In re DD, 2013 VT 79

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.