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SUMMARY OF THE 2006 ACTS AND RESOLVES

ACT NO. 198

(S.194)

Sealing juvenile records; care of children in the custody of the state;

rights of persons in need of guardianship

This act addresses six distinct issues: The sealing of delinquency and conviction records relating to offenses committed by a person under the age of 18; placement of a child who is in the custody of the state; judicial determinations at a child's detention hearing regarding whether reasonable efforts were made to prevent the unnecessary removal of the child from the home; establishment of a committee to study and recommend legislative changes to chapter 55 of Title 33 relating to juvenile delinquency and children in need of care or supervision proceedings; rights of persons in need of guardianship; and the establishment of a committee to study the need for and feasibility of creating a pilot project for guardianship monitors.

With respect to delinquency records, the act removes the requirement that a person apply to seal his or her delinquency record. For delinquencies committed on or after July 1, 1996, the record will be sealed automatically provided that two years have elapsed since the final discharge of the person, the person has not been convicted of a listed crime or adjudicated delinquent of such an offense after such initial adjudication, and no proceeding is pending seeking such conviction or adjudication; and the person's rehabilitation has been attained to the satisfaction of the court.

At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed, the court will provide such person's name and other identifying information to the state's attorney in the county in which the person was adjudicated delinquent. The state's attorney may object and a hearing may be held to address the state's attorney's objection. The order to seal shall include all the files and records relating to the matter; however, the court may limit the order to the court files and records only upon good cause shown by the state's attorney.

The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 1996 but before July 1, 2001 must be completed by January 1, 2010. The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 must be completed by January 1, 2008.

If a person was adjudicated delinquent before July 1, 1996, he or she may apply to have the files and records sealed. After notice to all parties of record and hearing, the court will order the sealing of all files and records related to the proceeding if it finds that the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication and the person's rehabilitation has been attained to the satisfaction of the court.

ACT NO. 198

(S.194)

Sealing juvenile records; care of children in the custody of the state;

rights of persons in need of guardianship

This act addresses six distinct issues: The sealing of delinquency and conviction records relating to offenses committed by a person under the age of 18; placement of a child who is in the custody of the state; judicial determinations at a child's detention hearing regarding whether reasonable efforts were made to prevent the unnecessary removal of the child from the home; establishment of a committee to study and recommend legislative changes to chapter 55 of Title 33 relating to juvenile delinquency and children in need of care or supervision proceedings; rights of persons in need of guardianship; and the establishment of a committee to study the need for and feasibility of creating a pilot project for guardianship monitors.

At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed, the court will provide such person's name and other identifying information to the state's attorney in the county in which the person was adjudicated delinquent. The state's attorney may object and a hearing may be held to address the state's attorney's objection. The order to seal shall include all the files and records relating to the matter; however, the court may limit the order to the court files and records only upon good cause shown by the state's attorney.

The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 1996 but before July 1, 2001 must be completed by January 1, 2010. The process of sealing files and records for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 must be completed by January 1, 2008.

If a person was adjudicated delinquent before July 1, 1996, he or she may apply to have the files and records sealed. After notice to all parties of record and hearing, the court will order the sealing of all files and records related to the proceeding if it finds that the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication and the person's rehabilitation has been attained to the satisfaction of the court.

On application of a person who, while a child, was found to be in need of care or supervision or, on the court's own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds the person has reached the age of majority; and sealing the person's record is in the interest of justice.

On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed prior to attaining the age of majority, after notice to all parties of record and hearing, the court will order the sealing of all files and records related to the proceeding provided that two years have elapsed since the final discharge of the person, the person has not been convicted of a listed crime or adjudicated delinquent of such an offense after such initial adjudication, and no proceeding is pending seeking such conviction or adjudication; and the person's rehabilitation has been attained to the satisfaction of the court.

In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed. In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding. The court will order the sealing, provided that two years have elapsed since the dismissal of the charge. This provision applies to court files only.

Pursuant to the act, the court will no longer be required to provide notice to parties of record prior to ordering the sealing of juvenile diversion records. Parties may still file a motion to object to the sealing.

Under this act, to "seal" a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record. A "sealed" file or record is retained and shall not be destroyed unless a court issues an order to expunge the record. Unless otherwise noted, a sealing order under this act shall include the files and records of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing.

Except as provided below, upon the entry of an order sealing such files and records under this act, the proceedings in the matter shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. A court, agency, or department that seals a record may keep a special index of files and records that have been sealed. The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to the act.

A department or agency may petition to inspect its own files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records, or in certain public safety circumstances.

Any entities subject to sealing orders pursuant to this act are required to establish sealing policies and must provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.

Sections 5 and 6 of the act address the placement of children in the custody of the state. At the emergency detention hearing, if the court concludes that a child taken into custody may be found delinquent or in need of care or supervision, the court may transfer legal custody of the child to the commissioner pending a detention hearing. Unless ordered otherwise at or after the detention hearing, the commissioner will have sole authority to place the child in a family home or a treatment, rehabilitative, detention, or educational institution or facility. If, at the detention hearing, the court finds that no other suitable placement is available and the child presents a risk of injury to him- or herself, to others, or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child. Alternatively, the court may order that the child be placed at a secure facility used for the detention of delinquent children for up to seven days. Any order for placement at a secure facility will expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days.

Section 7 of the act clarifies language added in 2005 that requires the court to make a judicial determination at the detention hearing that reasonable efforts were made to prevent unnecessary removal of the child from the home. Written findings are not required if aggravating circumstances are present. This act clarified that one of the aggravating circumstances may be that the parental rights of the parent with respect to a sibling have been terminated involuntarily.

Section 8 of the act establishes a committee for the purpose of studying and recommending legislative changes to chapter 55 of Title 33, relating to juvenile delinquency and children in need of care or supervision proceedings. The committee consists of 10 members and is chaired by the administrative judge. The committee will report its findings and recommendations to the house and senate committees on judiciary by January 15, 2007, after which the committee will cease to exist.

Sections 9-13 of the act address the rights of persons under a guardianship order and focus specifically on general rights of wards, right to counsel, and the requirements of the guardian regarding a change in residential placement. Section 14 of the act creates a committee to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts. The committee is required to report its findings and recommendations to the house and senate committees on judiciary and the governor on or before January 15, 2007. The report shall include a recommendation of whether a system of guardianship monitoring is needed, and if so, the details for such a program.

Effective Date: September 1, 2006; however, study committees examining juvenile proceedings and guardianship monitors take effect upon passage.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us