In re EW

• Decision Date: 25 January 1999
• Docket Number: No. 98-414.,98-414.
• Citation: 726 A.2d 58
• Court: Vermont Supreme Court
• Parties: In re E.W.

726 A.2d 58

In re E.W.

No. 98-414.

Supreme Court of Vermont.

January 25, 1999.

Present AMESTOY, C.J., DOOLEY, MORSE, SKOGLUND, JJ., and ERNEST W. GIBSON, J. (Ret.) Specially Assigned.

ENTRY ORDER

The issue in this appeal is whether the family court abused its discretion by excluding appellant as a party in a termination-of-parental-rights (TPR) proceeding involving a three-year-old girl and her mother, with whom appellant had lived for a period of time. We conclude that the court acted within its discretion, and thus affirm its order denying appellant party status in the TPR proceeding.

E.W. was born in January 1996. In May 1996, appellant was named as E.W.'s father in a petition seeking to have her adjudicated a child in need of care or supervision (CHINS). Appellant and the child's mother agreed to the CHINS adjudication, admitting that their significant substance abuse problems prevented them from properly caring for the child. Legal custody remained with the mother under the protective supervision of the Department of Social and Rehabilitation Services (SRS). In January 1997, as the result of a stipulation entered into by appellant and E.W.'s mother, the family court issued a parentage order establishing appellant as the child's father. In August 1997, E.W. was removed from her home after her mother was found drugged and passed out in their apartment. The family court granted a motion to modify the original disposition order by transferring custody of E.W. to SRS.

In January 1998, SRS filed a petition to terminate the mother's parental rights. The case plan report accompanying the petition noted that appellant would be considered a placement option if within a three-month time frame he remained drug free and demonstrated that he could adequately and safely parent E.W. In March 1998, appellant sought a blood test to determine if he was E.W.'s biological father. At a status conference in May 1998, the State moved to exclude appellant from the TPR proceeding based on the blood test results, which determined that appellant was not E.W.'s biological father. Father moved to vacate the parentage order, but asked either to be included in the TPR proceeding as an interested party or at least to be allowed to participate in the process by remaining as a placement option. The family court allowed appellant to attend the TPR proceeding but denied his request for party status because he was not E.W.'s father and the State's petition did not seek termination of whatever parental rights he claimed. The court granted appellant's motion to appeal this ruling, but declined to stay the TPR proceeding. On appeal, appellant argues that he was entitled to party status in the TPR proceeding because (1) he is E.W.'s father under the parentage order, which was never vacated; (2) he stands in loco parentis to the child; (3) he was named as E.W.'s father in the CHINS petition; (4) he has visitation rights; and (5) he had physical custody of E.W. at some point in the past.

We first address this Court's jurisdiction to consider the appeal. Unsure of whether the family court's July 23, 1998 ruling excluding her client as a party was a final appealable order, appellant's attorney moved for permission to appeal the ruling. At a July 29 status conference, the court indicated that it was willing to designate the ruling as a partial final judgment. In its August 10 written order, the court stated that its July 23 ruling was a final appealable order. Appellant filed a notice of appeal on August 26, more than thirty days beyond the July 23 ruling, but within thirty days of the court's decision to designate the ruling as a partial final judgment. The court's apparent reliance on V.R.C.P. 54(b), which allows the entry of final judgment as to fewer than all of the claims or parties in a proceeding, was improper. See V.R.F.P. 2(a)(2) (V.R.C.P. 54 among civil rules not applicable to CHINS cases). Nevertheless, given the court's stated intention to allow an appeal of its July 23 ruling, we will treat the instant appeal as one permitted by the family court under V.R.A.P. 5.1. See V.R.A.P. 2 (requirements of rules may be suspended for good cause shown). We reject the State's circular reasoning that because the family court denied appellant party status in the TPR proceeding, he lacks standing as a nonparty to seek permission to appeal that decision. See V.R.A.P. 5(b) (trial court may permit interlocutory appeal upon motion of any "party"); V.R.A.P. 5.1 (same). There is no indication that the use of the word "party" in the aforementioned rules was meant to preclude review of a decision denying a person party status.

While we conclude that the instant appeal is properly before us, we find no abuse of discretion in the court's decision granting the State's motion to deny appellant party status in the TPR proceeding. Appellant had neither married the mother nor adopted E.W., whom he conceded was not his biological child. Although appellant wanted to leave open the possibility that he would be considered as a future placement option for E.W., he failed to show that he had any cognizable interest in being a party to a proceeding that sought to terminate only the mother's parental rights. In In re M.C., 156 Vt. 642, 643, 590 A.2d 882, 882-83 (1991) (mem.), we held that a noncustodial mother had no standing to appeal the dismissal of a CHINS petition because we were "unable to determine any legal right of [mother] that [had] been enlarged or diminished by the ruling that her children were not CHINS." Her noncustodial interest in the children was not sufficient to contest dismissal of a proceeding that was essentially between SRS and the custodial father. She had not been aggrieved by the decision, and had no standing to appeal it. See id. Similarly, in this case the decision granting or denying the petition to terminate the mother's parental rights will not affect any claim appellant may have to residual parental rights or to custody. Further, the court's refusal to...