Court On Appeal from Superior Court, Chittenden Unit, Family
Division Martin A. Maley, J.
Allison N. Fulcher of Martin & Associates, Barre, for
William H. Sorrell, Attorney General, and Elizabeth M.
Tisher, Assistant Attorney General, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Father appeals from a post-disposition order of the family
court transferring custody of the minor I.B. to the
Department for Children and Families (DCF). He contends the
court violated his due process rights by: (1) transferring
custody without making an express finding of changed
circumstances; and (2) applying a
preponderance-of-the-evidence standard of proof. We also
consider whether the order at issue is a final appealable
order. We conclude that it is, and affirm.
2. This case arose in early July 2012, when the State filed a
CHINS (child in need of care and supervision) petition and
request for an emergency care order based on concerns about
mother's ability to care for the minor I.B., born on July
13, 2012. The parents had an extensive history with DCF;
several older children had been previously adjudicated CHINS
based on mother's continuing use of opiates, and their
parental rights to the children were ultimately terminated.
See In re L.B., No. 2011-320 (Vt. March 15, 2012)
The court granted the emergency care order and transferred
custody of I.B. to DCF. The child was eventually placed in
foster care with the same family that had adopted her older
3. About a month later, in August 2012, the court issued a
temporary care order for a placement of I.B. with mother at
the Lund Center. Mother failed to complete the necessary drug
assessment, however, and the child consequently remained in
foster care. In July 2013, following a hearing, the court
adjudicated I.B. to be CHINS. In February 2014, the court
adopted a case plan with concurrent goals of reunification or
adoption within three to six months.
4. Several months later, in June 2014, the minor filed a
petition to terminate parental rights. Following a hearing in
February 2015, the court issued findings and conclusions on
the record, denying the petition. In April 2015, the court
approved a new disposition plan with a goal of reunification
within three to six months. Following a post-disposition
review hearing in October 2015, the court amended the plan to
grant parents conditional custody of I.B. for three months
under a set of conditions requiring compliance with the
provisions in the amended plan.
5. In December 2015, the State moved to retransfer custody to
DCF based on reports of domestic violence and substance abuse
in the parents' home. Following a hearing, the court
entered findings and conclusions on the record, and several
days later issued a written order transferring custody of
I.B. to DCF. Father has appealed from that order.
6. Before considering father's claims, we address a
motion to dismiss filed on behalf of the minor which the
State has joined. They claim that the order at issue, which
the court denominated "a temporary care order, " is
not a final appealable judgment, and that this Court
therefore lacks jurisdiction absent an order granting
interlocutory review. See Hospitality Inns v.
South Burlington R.I., 149 Vt. 653, 656, 547 A.2d
1355, 1358 (1988) ("[A] final judgment is a prerequisite
to appellate jurisdiction unless the narrow circumstances
authorizing an interlocutory appeal are present.").
7. We agree that a true temporary care order issued pursuant
to 33 V.S.A. § 5308 following an emergency care or
custodial care order and temporary care hearing, or one
entered pending a final disposition order pursuant to 33
V.S.A. § 5317(e),  are both generally unappealable. By
their nature, these orders are designed to be short-term,
stop-gap measures pending a CHINS or final disposition
hearing. See 33 V.S.A. § 5309(b) (requiring State's
Attorney to file CHINS petition no later than date of
temporary care hearing following issuance of emergency care
or conditional custody order). They are not final, even in
the modified sense recognized in In re D.D., where
we held that a CHINS adjudication is a final and appealable
order, despite the fact that it does not finally resolve the
child-neglect proceeding, because "it can result in a
prolonged intrusion into parents' fundamental liberty
interest." 2013 VT 79, ¶ 25, 194 Vt. 508, 82 A.3d
1143 (quotation omitted) (emphasis added).
8. The motion triggering the court's order here was a
request to transfer custody to DCF. No new petition alleging
additional bases for a CHINS adjudication had been filed,
however. Therefore, despite the court's characterization
of its written order of December 28, 2015 as a
"temporary care order, " no basis existed for the
issuance of a temporary care order under 33 V.S.A. §
5308. Further, a final disposition order had issued months
previously; thus, the order was not of the type authorized by
33 V.S.A. § 5317(e) pending final disposition.
9. As noted, the modified plan from October 2015 had
transferred legal custody from DCF to parents under a set of
conditions requiring compliance with provisions of the plan.
Thus, DCF's motion to retransfer custody to DCF was
essentially a motion to modify the disposition plan, and the
court effectively treated it as such, entering findings
which, as discussed below, showed that circumstances had
materially changed and that modification was in the best
interests of the child. See 33 V.S.A. §5318(d) ("A
disposition order 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."). Accordingly we conclude that the court's
order following the hearing, although erroneously styled a
temporary care order, was procedurally an order modifying the
custodial aspects of the court's prior disposition order
pursuant to 33 V.S.A. §§ 5318(d) and 5113(b).
10. It is settled that the parties can appeal a modification
of a disposition order. See In re. R.M., 2013 VT 78,
¶ 8, 194 Vt. 431, 82 A.3d 565 ("Because a
disposition order is a final order and thus meets the
standard for an appealable order, the parties can appeal a
disposition order whether original or as a result of