In re R.M., R.M. and C.M., Juveniles
On Appeal from Superior Court, Washington Unit, Family Division June Term, 2013 Thomas J. Devine, J.
Michael Rose, St. Albans, for Appellant.
Kristin G. Wood, Washington County Deputy State’s Attorney, Barre, for Appellee State.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Appellee Juveniles.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Following a permanency review hearing, the superior court, family division amended its initial disposition order from a goal of reunification to a concurrent plan for either reunification or adoption. Mother appealed, claiming that the court erred in modifying the disposition order and finding that a reasonable period of time for her to complete needed services under the new plan was six months. While the appeal was pending, we requested supplemental briefing on whether the order in question is an appealable final order. We now conclude that it is and affirm the judgment.
¶ 2. The three children involved in this appeal, R.M., R.M. and C.M., have been the subject of various juvenile proceedings since 2004, when they lived with their parents in the City of Winooski. CHINS petitions were filed in 2009 alleging neglect based on habitual truancy. While the petitions were pending, mother moved with the children to Pennsylvania, and the matter was placed on inactive status. Father later moved to New York, and has since maintained limited contact with the children.
¶ 3. In August 2011, mother sent the children back to Vermont to live with her older son in Winooski while she remained in Pennsylvania. This followed an investigation in Pennsylvania which disclosed that the family was being evicted from their apartment and that the family home was replete with dirty laundry, garbage, spoiled food, and insects. In September 2011, DCF became aware of the children’s return to Vermont and took them into custody. They were later placed in foster care, where they have since remained. Mother and father stipulated to an adjudication of CHINS in February 2012.
¶ 4. Following a disposition hearing in April 2012, the court issued a written order adopting the case plan goal of reunification together with the requirements that mother obtain adequate housing and maintain it in a safe and sanitary condition, maintain consistent and successful visitation, engage in parent-education services, and participate in mental health counseling. In October 2012, however, DCF filed a follow-up case plan recommending that the goal be amended to a concurrent one of reunification or adoption. The court held an evidentiary hearing in January 2013 and issued a written decision shortly thereafter in which it “adopt[ed] the proposed amendments to the case plan based on changed circumstances in the best interest of the children.” The court found in this regard that mother had “not made substantial progress toward the goal of obtaining safe and appropriate housing, ” that her progress in mental health treatment was uncertain, and that additional parenting education was needed. Thus, the court found that, after eighteen months in DCF custody, “the children are [still] not able to go home to mother’s care today, nor is that likely to happen in the immediate future.” “The slow pace of [mother’s] progress and the children’s need for permanency, ” the court further concluded, represented a substantial change of circumstances, and determined that “a modification of the disposition order to reflect a concurrent plan [was] now in the best interest of the children.” The court explained that while it was not “abandoning reunification” as the primary goal, “concurrent planning [would] enable DCF to prepare for an alternative should [mother] become unable to complete needed services within a reasonable period of time, ” which it projected as “six more months.” Mother has appealed from this decision. 
¶ 5. As noted, a threshold issue is whether the trial court decision modifying the initial disposition order is appealable under the statutory scheme governing permanency proceedings. Under that scheme, once a child has been adjudicated CHINS, DCF is required to file a disposition case plan which must include: a permanency goal; assessments of the child’s needs, living situation, and family circumstances; a recommendation with respect to custody; and a plan of services to achieve the permanency goal. 33 V.S.A. § 5316(b). The trial court must then conduct a disposition hearing and issue an order “related to legal custody... as the court determines are in the best interest of the child.” Id. § 5318(a). If the order provides for a transfer of custody with a goal of reunification, the court is directed to schedule “regular review hearings to evaluate progress, ” id. § 5318(a)(2), the first to occur within 60 days of the disposition order, id. § 5320(a). Where custody is transferred to the Commissioner of the Department of Children and Families, pursuant to § 5318(a)(4), the disposition order is also “subject to periodic review at a permanency hearing.” Id. § 5321(a).
¶ 6. The disposition order is the foundation for the various review proceedings. It is “a final order which may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5113 of this title.” Id. § 5318(d) (emphasis added). The latter provision authorizes the trial court—after notice and a hearing—to amend, modify, set aside or vacate an order “on the grounds that a change in circumstances requires such action to serve the best interests of the child.” Id. § 5113(b).
¶ 7. We do not read the various avenues for review of the circumstances and expectations of the parents and children to create independent opportunities to modify a disposition order without a showing of changed circumstances under § 5113(b). Instead they reflect that circumstances must change within relatively short periods of time to reflect the goals of the case plan and achieve permanency for the children. Thus, one result of a permanency hearing is to produce an estimate of when the permanency goal will be achieved. Id. § 5321(a). The court recognized the standard in this case and, where the result of the permanency hearing was to modify the disposition order, the court found that the modification was based on changed circumstances as defined in § 5113(b).  This new order—with its modified permanency goal, parental requirements, and timeframes—essentially replaced the original disposition order.
¶ 8. Because a disposition order is a “final order, ” id. § 5318(d), and thus meets the standard for an appealable order, see In re Burlington Bagel Bakery, 150 Vt. 20, 21, 549 A.2d 1044, 1045 (1988) (to be final and appealable, an order must “end litigation on the merits or conclusively determine the rights of the parties, leaving nothing for the court to do but execute the judgment” (quotation omitted)), the parties can appeal a disposition order whether original or as a result of modification. Because the order mother has appealed is an amended disposition order, we have jurisdiction over the appeal. Although we have not previously considered the issue, we note that this conclusion is consistent with a number of our prior decisions. See, e.g., In re D.G., 2006 VT 60, ¶¶ 1-4, 180 Vt. 577, 904 A.2d 1206 (mem.) (affirming permanency planning order modifying custody from DCF to child’s aunt and uncle and holding that evidence supported finding of changed circumstances); In re A.G., 2004 VT 125, ¶¶ 16-27, 178 Vt. 7, 868 A.2d 692 (affirming decision modifying permanency goal from reunification to long-term foster care and concluding that evidence supported finding of changed ...