In re E.W.

In re E.W.  (98-414); 169 Vt. 542; 726 A.2d 58

[Filed 25-Jan-1999]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-414

                             NOVEMBER TERM, 1998


In re E.W.                            }	APPEALED FROM:
                                      }
                                      }
                                      }	Franklin Family Court
                                      }	
                                      }
                                      }	DOCKET NO. 105-05-96 Frjv	


       In the above-entitled cause, the Clerk will enter:

       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 grant appellant party status in the TPR proceeding concerning
  the mother does not  preclude him from later claiming residual parental
  rights and seeking legal custody or guardianship in the  event the mother's
  parental rights are terminated.  See 33 V.S.A. § 5528(3)(B) (at any time
  following  CHINS adjudication, family court may transfer legal custody,
  guardianship, or residual parental rights to  any individual found to be
  qualified to receive and care for child); cf. In re M. and G., 132 Vt. 410,
  414,  321 A.2d 19, 22 (1974) (putative father's challenge to probate court
  order terminating mother's parental  rights was premature considering order
  did not purport to terminate his parental rights; father could assert  any
  custody claims at adoption proceedings).

       None of appellant's arguments compel us to conclude that the family
  court was required to grant him  party status in the termination
  proceeding.  Appellant contends that the prior parentage order legally 
  established him as E.W.'s father and thus entitled him to party status as a
  parent.  See 33 V.S.A. §§  5502(13) ("party" means child with respect to
  whom proceedings are brought and any other persons or  entities referred to
  in § 5519(a)), 5519(a) (upon filing of CHINS petition, family court shall
  direct issuance  of summons to specified persons and entities, including
  parents).  He relies on our recent decision in Godin  v. Godin, 9 Vt. L.W.
  337 (1998) that prior adjudications of paternity are res judicata and must
  control even  if it is later determined that the adjudicated parent is not
  the biological parent.  We emphasize that the TPR  proceeding in this case
  did not concern appellant's parental status, either as of the time of the 


 

  proceeding or in the future.  We do not believe that the proper parties in
  a TPR proceeding necessarily  include all those served under § 5519 at
  commencement of the CHINS proceeding.  Regardless of whether  the same
  docket number is retained, a TPR petition seeking to modify a prior
  disposition order commences  a new and separate proceeding.  See In re
  B.C., No. 98-341, slip op. at 5 (Vt. Jan. 8, 1999).  Appellant  took no
  position on whether the mother's rights should be terminated.  He sought
  only to be available as  a placement option, a position that remains open
  to him.  The family court allowed him to observe the TPR  proceeding,
  notwithstanding confidentiality restrictions.  Under the circumstances, we
  see no legal  significance in the specification of appellant's party
  status.  Even if there is error, it is harmless.

       For the above reasons, we also conclude that whether appellant stands
  in loco parentis to E.W. or  was formerly E.W.'s custodian is not
  determinative of the issue presented in this appeal.  In any event, 
  appellant failed to demonstrate that his relationship with E.W. entitled
  him to party status as an equitable  parent, assuming that such a
  relationship should be recognized in termination proceedings.  Appellant 
  himself conceded that he did not live with E.W. for at least one-third of
  her life before she was placed in  SRS custody when she was only one and
  one-half years old.  Further, the SRS case plan report indicated  that
  appellant was, at best, in and out of E.W.'s life as the result of
  incarceration and treatment stemming  from his significant substance abuse
  problems.  Finally, appellant did not have custody of E.W. at the time  he
  sought party status in the TPR proceeding.

       In sum, under the circumstances of this case, appellant has not
  demonstrated that the family court  abused its discretion by denying him
  party status in a termination proceeding in which the State was not 
  seeking to terminate his parental rights.  Cf. In re Baby Girl B, 618 A.2d 1, 9 (Conn. 1992) (because  proceeding was concerned only with terminating
  mother's parental rights, preadoptive parents' intervention  would have
  been of little or no value to court's decision on whether grounds for
  termination had been  proved; therefore, trial court did not abuse its
  discretion in denying preadoptive parents' request for  permissive
  intervention).

       Affirmed.


BY THE COURT:


__________________________________________
Jeffrey L. Amestoy, Chief Justice

__________________________________________
John A. Dooley, Associate Justice

__________________________________________
James L. Morse, Associate Justice

__________________________________________
Marilyn S. Skoglund, Associate Justice

__________________________________________
Ernest W. Gibson, Associate Justice (Ret.)
Specially Assigned