This setup is not final

In re C.P., 2019 VT 62 (mem.)

By Andrew Delaney

Sometimes, an appeal isn’t complete enough for SCOV to do anything but dismiss the appeal. In most cases, a basic requirement for SCOV to review an order is that the order be final. Occasionally, there’s an interlocutory appeal but in the normal course of things in the appellate world, an order has to be final before it can be appealed to SCOV.

After a permanency hearing, the family division rejected the parties’ stipulation that kiddos should go back to mom and issued an order telling DCF to come up with a new plan when the court would hold another permanency hearing. C.P. had serious, non-accidental injuries when the case started. Those injuries were still not explained and the court reasoned that returning the kids to mom’s custody—C.P. and a sibling born after C.P.’s case had started—was not in the children’s best interests.

The kids filed a motion to reconsider. Well, their lawyer filed a motion to reconsider because they were a toddler and an infant at the time. They would probably not able to write a cogent motion to reconsider for at least another year or two. The trial court denied the motion, explaining that those serious, unexplained injuries indicated that it was not in the kids’ best interests to go back with mom.

After the kids filed a notice of appeal, SCOV asked the kids to show cause. They argued that the trial court’s denial of the motion to reconsider was essentially a new disposition order, and a disposition order is a final order. SCOV doesn’t buy it.

SCOV concludes that the denial-of-the-motion-to-reconsider order was not a final appealable order. It didn’t modify the original disposition order. And the trial court didn’t wrap everything up at the permanency hearing. SCOV note that 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.” SCOV explains that the kiddos could’ve sought permission for an interlocutory appeal but they didn’t. And because the order appealed from isn’t a final order, this appeal gets dismissed.