In Re C.K.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-550



In re C.K., Juvenile                         Supreme Court

                                             On Appeal from
                                             Franklin Family Court

                                             Special December Term, 1990


John P. Meaker, J.

Howard W. Stalnaker, Franklin County Deputy State's Attorney, St.Albans, for
   petitioner

Jeffrey L. Amestoy, Attorney General, and Alexandra N. Thayer, Assistant
   Attorney General, Waterbury, for SRS

Steve Dunham, Public Defender, St. Albans, for respondent


PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


     DOOLEY, J.   The State seeks to appeal from an evidentiary ruling in
the detention-hearing stage of a CHINS (child in need of care or
supervision) proceeding.  We dismiss the appeal because it does not satisfy
the collateral final order criteria set out in V.R.A.P. 5.1.
     The following events gave rise to this appeal. (FN1) On November 27, 1990,
seven-year-old C.K. informed a school nurse that her father had sexually
abused her.  After she repeated the allegations to SRS workers and a police
officer, a CHINS petition was filed, and she was taken into custody pursuant
to an ex parte temporary detention order.  See 33 V.S.A. {{ 5510, 5513-5514.
The following day, the girl's father was arraigned on a charge of lewd and
lascivious conduct with a child and released on the condition that he not
contact his daughter.  The hearing on continued detention pending resolution
of the petition commenced on November 29, and was continued until December
4.  See 33 V.S.A. { 5515(a) (court must hold detention hearing within forty-
eight hours of detention order).  The father subpoenaed his daughter to
testify at the hearing, but the State opposed receipt of the child's testi-
mony, arguing that hearsay testimony from the nurse, SRS workers and the
police officer was admissible and sufficient at the detention phase of a
CHINS proceeding.  The court ruled that it would not order further detention
of the child unless the State presented evidence that would be admissible at
the merits hearing.  It proposed that the child testify in an informal
setting, with a social worker known to the child asking court-approved
questions.  The State declined to have the girl testify, and the court
released her into the custody of the mother.  The following day the court
denied the State's motion for permission to appeal its ruling and order
pursuant to V.R.A.P. 5.1. (FN2)
     At the outset, we point out that the standard for reviewing a trial
court's decision to deny permission to file an interlocutory appeal is
whether the trial court abused or withheld its discretion.  State v. McCann,
149 Vt. 147, 151, 541 A.2d 75, 77 (1987).  Collateral order appeals are a
variation of interlocutory appeals that serve as another narrow exception to
the final judgment rule.  See 9 J. Moore, B. Ward & J. Lucas, Moore's
Federal Practice { 110.10, at 62 (2d ed. 1990); see also Hospitality Inns v.
South Burlington R.I., 149 Vt. 653, 656-57, 547 A.2d 1355, 1358 (1988)
(finality requirement is firmly established by Vermont caselaw and can be
overcome only through narrow exceptions, including collateral order
exception).  Accordingly, our reasoning in McCann applies equally where the
trial court denies permission to file a collateral order appeal.
     The trial court "may" permit an appeal from an interlocutory order or
ruling "if the judge finds that the order or ruling conclusively determines
a disputed question, resolves an important issue completely separate from
the merits of the action, and will be effectively unreviewable on appeal
from a final judgment."  V.R.A.P. 5.1.  Thus, even where the disputed order
or ruling meets the three criteria, V.R.A.P. 5.1 does not entitle the
moving party to review of that order or ruling.  In re Maple Tree Place,
Assocs., 151 Vt. 331, 333, 560 A.2d 382, 383 (1989); see Reporter's Notes --
1990 Amendment, V.R.A.P. 5.1 (Rule was amended in 1990 by replacing "shall"
with "may" to conform with the holding in Maple Tree).  Overriding the
"threshold criteria is our need to balance the possible loss of important
rights 'against this Court's policy of avoiding piecemeal review.'"  In re
Maple Tree, 151 Vt. at 332, 560 A.2d  at 383 (quoting State v. Lafayette, 148
Vt. 288, 292, 532 A.2d 560, 562 (1987)).
     For purposes of analysis we will accept the State's narrow version of
the disputed question -- Is hearsay testimony admissible at the detention-
hearing stage of a CHINS proceeding to aid the court in determining whether
continued detention is in the child's best interest? -- and assume that the
question was conclusively determined below.  We emphasize the assumption
because the father asserts that the trial court made no such conclusive
determination but instead ruled that it could not continue the detention
based on the evidence presented. (FN3) In any event, we conclude that the second
criterion of the collateral order appeal test is not met.  In order for that
criterion to be met, the disputed issue must not "'affect, or . . . be
affected by, [the] decision [on] the merits.'"  15 C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure { 3911, at 470 (1976) (quoting Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the leading
case on collateral appeals).  One of the purposes of the criterion is to
"minimize the intrusion on continuing trial court proceedings."  Id. at
471.
     The resolution of evidentiary questions such as the instant one
certainly have a substantial direct effect on the detention order, which
determines whether a child will be detained pending a hearing on the merits.
But because the detention order is only a preliminary step in a continuing
process aimed at determining the proper placement for the child, the court's
resolution of an evidentiary question raised at the detention hearing also
affects the merits of the entire CHINS proceeding.
     The interrelationship between the question raised and the merits of the
proceeding also affects how we exercise our discretion in deciding whether
to accept collateral order appeals.  An appeal from a ruling at the
detention hearing will invariably, as here, include a request for some sort
of interim relief while the issue is being resolved.  Although, in theory,
our consideration of the detention order would not always delay the CHINS
merits hearing, which must be held within fifteen days of the petition, see
33 V.S.A. { 5519(a), the practical result would be that the limited
resources available to resolve juvenile cases would often be focused on
disputes over preliminary rulings rather than the merits of the proceedings.
The all-too-familiar scenario is that lawyers who could be adjudicating the
merits of a controversy below are instead locked in a dispute here over a
practically moot legal issue.
     In sum, there is little doubt that appellate intervention at the
detention-hearing stage of CHINS proceedings could have significant impact
on the timing or resolution of the petition hearings.  Therefore, absent
grounds for extraordinary relief, we will not undermine the efficacy of the
CHINS process by allowing appeals from rulings in its preliminary stages,
even if it means that review of those rulings will never be available.  See
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 384 (1987)
(Brennan J., concurring) (although argument that order is effectively
unreviewable is not persuasive for affording interlocutory appeal, it could
be made in support of petition for extraordinary relief); see also Carroll
v. United States, 354 U.S. 394, 406 (1957) ("Many interlocutory decisions of
a trial court may be of grave importance to a litigant, yet are not amenable
to appeal at the time entered, and some are never satisfactorily
reviewable."); Weight Watchers of Philadelphia, Inc. v. Weight Watchers
Int'l, Inc., 455 F.2d 770, 774 (2d Cir. 1972) ("mere inability to secure
review of an interlocutory order on appeal from the final judgment does not
warrant permitting immediate review of such orders").  It is crucial that
the CHINS determination proceed unhindered by appeals challenging an
infinite variety of procedural and substantive questions that may arise
along the way.  See In re B.M.L., 137 Vt. 396, 399, 406 A.2d 383, 385 (1979)
(dominant concern of juvenile statute is to provide for speedy resolution of
disputes involving charge that child is in need of care or supervision,
especially when detention or removal from custody of parents is involved).
     The State insists that the instant appeal concerns a general question
of law, and its resolution in favor of the State would actually streamline
the CHINS proceeding by preventing full-blown evidentiary hearings at the
detention-hearing stage.  This argument misperceives the nature of
collateral order appeals.  It is primarily the nature of the order, not the
reason for the order, that gives rise to the relief.  If we hold that a
refusal to issue a detention order because of concerns about the nature of
the evidence is appealable, then any detention order, or failure to issue
one, will be appealable as long as the first criterion of the collateral
order test is met.  Rather than addressing the significance of the legal
issues underlying the court's order, our holding today is that orders
granting or refusing detention are not collateral orders within the meaning
of V.R.A.P. 5.1.
     Appeal dismissed.

                              FOR THE COURT:


                              ____________________________________________
                              Associate Justice





FN1.    There is some dispute between the appellee father and the State over
what occurred, and we do not have a transcript.  We need not resolve the
dispute, however, because we lack jurisdiction even under the State's
characterization of events.

FN2.    On December 19-20, 1990, the merits hearing on the CHINS petition
was held.  The court found that C.K. was in need of care or supervision and
issued an order (1) giving the mother custody of the child, (2) allowing SRS
access to the child at any time, and (3) prohibiting the father from
contacting the child.  The State concedes that this order effectively moots
its motion for a stay of the detention-hearing order.  Nonetheless, it
argues that the appeal of this order is not moot because it presents an
issue "capable of repetition, yet evading review."  See State v. Tallman,
148 Vt. 465, 469, 537 A.2d 422, 424 (1987) (order closing a pretrial hearing
to press coverage was capable of repetition without review); see also
Virginia v. Tenneco, Inc., 538 F.2d 1026, 1031 (4th Cir. 1976) (appeal from
temporary restraining order prohibiting natural gas supplier from reducing
gas allocations was not moot where supplier ran substantial risk of other
similar suits).  The father does not challenge this argument other than to
say that mootness exceptions should not apply to collateral appeals such as
the instant one.

FN3.    The father also argues that detention orders cannot be appealed as
final collateral orders because they are subject to review by the trial
court at any time and they are by definition temporary.  He thus asserts
that the first criterion of the V.R.A.P. 5.1 test is not met because a
temporary detention order does not "conclusively determine" the disputed
question.  We are reluctant to address this argument because we do not know
the precise basis for the court's ruling in this case.