In re M.C. & C.C.

Annotate this Case



                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-538

                            FEBRUARY TERM, 1991


In re M.C. & C.C., Juvenile       }          APPEALED FROM:
                                  }
                                  }
                                  }          Rutland Family Court
                                  }
                                  }
                                  }
                                  }          DOCKET NO. 144/45-8-90Rj


             In the above entitled cause the Clerk will enter:

     Appellant mother appeals from the family court's order dismissing a
petition to have her children declared Children in Need of Services (CHINS)
pursuant to 33 V.S.A. { 5526.  Neither the state's attorney for Rutland
County, who filed the CHINS petition, nor the attorney for the children
appealed the dismissal of the CHINS petition.  Appellee father moved to
dismiss the appeal on the grounds that appellant has no standing.

     The generally recognized rule is that a party must be aggrieved by a
decision to appeal therefrom.  Howard Savings Inst. v. Peep, 34 N.J. 494,
499, 170 A.2d 39, 41 (1961).  In the context of a probate proceeding, we
have held that a person seeking to appeal a decision must have a legal
interest in the decree that may be enlarged or diminished.  In re Estate of
Walsh, 133 Vt. 429, 341 A.2d 706 (1975); State v. Central Vermont Railway
Co., 81 Vt. 459, 71 A. 193 (1908).  In short, to establish standing, the
rights of the party seeking to appeal must be adversely affected by the
judgment.  Braasch v. Mandel, 40 Del. Ch. 12, 15, 172 A.2d 271, 273 (1961).

     Our juvenile proceedings provisions, Title 33, chapter 55, do not
include a statute expanding appellate standing beyond these common law
mandates.  Other jurisdictions, in contrast, have included an appellate
standing statute within their juvenile proceedings provisions.  See, e.g.,
Fla. Stat. Ann. { 39.445 (West 1988) (standing to appeal a CHINS order
accorded to the state or the child, or the family, guardian ad litem, or
legal custodian of any child affected by the order).  Without any such
legislative pronouncement, the common law standard governs.

     A CHINS petition may be initiated by a state's attorney in response to
allegations that a child is abused, abandoned, lacking proper parental care,
or beyond the control of his or her parents.  33 V.S.A. {{ 5502, 5516, 5517.
In dismissing a petition, the family court determines that the children were
not abused, or otherwise not lacking  proper care or supervision.  A dis-
missal is typically a judgment in favor of the parents, and would not
ordinarily confer upon the parents standing to appeal.  In the present case,
appellant mother is the noncustodial parent.  Neither the grant nor the
dismissal of the CHINS petition would have affected her custodial rights.
Moreover, we are unable to determine any legal right of appellant that has
been enlarged or diminished by the ruling that her children were not CHINS.
Since the appellant has not been aggrieved by the decision, she is without
the requisite interest and has no standing to appeal the decision.

      Appeal Dismissed.







                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   Denise R. Johnson, Associate Justice