Two Tales on Timing from the Tenth

By Andy Delaney

"Tales" might be overstating a bit. But we're going with it. 

First, SCOV answers the question of whether a CHINS merits adjudication in a juvenile case when the child is returned to the parents' custody at disposition, without any conditions, presents a live controversy. That sentence was unacceptably lawyerly, but I'm too lazy to rewrite it. Without getting too deep into the weeds, SCOV reasons that the appeal is moot and no exceptions to mootness apply. Briefly, a merits adjudication is not a final, appealable order separate from disposition. Once the court turns over custody to a parent with no conditions or supervision—as happened here—then the family division's jurisdiction terminates. Parents argue that the State could move to modify or something while an appeal is pending, but SCOV dismisses this concern as purely hypothetical. SCOV further reasons: (1) that the merits adjudication is unlikely to have collateral consequences later (other than hypothetically); and (2) that parents are unable to establish that they are going to be subjected to the same action again. Thus, SCOV dismisses the parents' appeal as moot. In re M.M., 2024 VT 28. 

Our second case for the week concludes that the "last occurrence" in a 20-year statute of repose in a noxious-agent (asbestos) case is the last exposure to the agent, not the development of the resulting disease (mesothelioma) as in this case. One other case seems to suggest a different result but SCOV distinguishes that case by suggesting that it's not the development of the disease itself but a change in the body that becomes a proximate cause (in the other case it was puberty that allegedly caused a reaction to in vitro hormonal therapy), and also, that because mesothelioma is only caused by asbestos that there's no other potential proximate cause (like a change in the body). While SCOV acknowledges that this result might seem unfair—after all, the plaintiff in this case didn't develop mesothelioma until after the 20-year-period had expired—it reasons that this is what the legislature intended. Plaintiff makes a valiant effort to save the case with an common-benefit argument under Article 7 of the Vermont Constitution but SCOV reasons that the 20-year repose period "does not arbitrarily disadvantage any part of the community." Accordingly, SCOV affirms the trial court's grant of summary judgment for the defense. Carpin v. Vt. Yankee Nuclear Power Corp., 2024 VT 27.