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S.194

AN ACT RELATING TO SEALING JUVENILE RECORDS RELATING TO A DELINQUENT ACT

The House proposes to the Senate to amend the bill as follows:

First:  By striking Sec. 2 in its entirety and inserting in lieu thereof the following:

Sec. 2.  33 V.S.A. § 5538 is amended to read:

§ 5538.  SEALING OF RECORDS

(a)(1)  On application of a child who has been adjudicated delinquent or in need of care or supervision, or on the court’s own motion, and after notice to all parties of record and hearing  Except as provided in subsection (b) of this section, in matters relating to a child who has been adjudicated delinquent on or after July 1, 2004, the court shall order the sealing of all files and records of the court applicable related to the proceeding if it two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds;:

(1)  Two years have elapsed since the final discharge of the person,

(2)  He (A)  the person has not been convicted of a felony or misdemeanor involving moral turpitude listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent or in need of care or supervision of such an offense after such initial adjudication and prior to the hearing and no, or a proceeding is pending seeking such conviction or adjudication, and; or

(3)(B)  His rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.

(b)  On application of a child who has been adjudicated delinquent on or after July 1, 2004 for an offense listed in 13 V.S.A. § 5301, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(c)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 2004, on application of the child or on the court’s own motion, and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  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

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(d)  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:

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(e)  The application or motion and the order may Except as provided in subsection (i) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records specified in sections 5536 and 5537 of this title 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.

(b)  Notice of a hearing held under this section shall in any event be given to:

(1)  The state’s attorney having jurisdiction,

(2)  If the final discharge was from an institution or from parole, the authority granting the discharge, and

(3)  If the files and records specified in sections 5536 and 5537 of this title are included in the application or motion, the law enforcement officers or department having custody of the files and records.

(c)(f)(1)  Upon Except as provided in subdivision (2) of this subdivision, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act 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.  Copies of the order shall be sent to each agency or official named therein.

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  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 subsection (g) of this section. 

(B)  Access to the special index shall be restricted to the following persons:

(i)  the clerk of the district or family court;

(ii)  the commissioner and general counsel of any administrative department;

(iii)  the secretary and general counsel of any administrative agency;

(iv)  a sheriff;

(v)  a police chief;

(vi)  a state’s attorney;

(vii)  the attorney general;

(viii)  the director of the Vermont crime information center; and

(ix)  a designated clerical staff person in each office identified in subdivisions (i)–(viii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access.

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency.

(d)(g)(1)  Inspection Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named therein.

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (e) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such 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.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed.

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed.

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court’s order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(e)(h)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, the files and records may be sealed after proceedings in conformity with and subject to the limitations of subsections (a), (b), (c) and (d) of this section after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(i)(1)  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.

(2)  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 shall order the sealing, provided that two years have elapsed since the dismissal of the charge.

(j)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential.

(k)  For purposes of this section, 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.

(l)  The court shall provide assistance to persons who seek to file an application for sealing under this section.

(m)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.  State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly.

Second:  By adding Sec. 6a to read as follows:

Sec. 6a.  13 V.S.A. § 7041(d) is amended to read:

(d)  Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence.  Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent.  Upon discharge, the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted, except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.

Third:  In Sec. 7, subsection (b), by striking subdivisions (7) and (8) and inserting in lieu thereof:

(7)  an attorney specializing in representing children in juvenile proceedings appointed by the Vermont bar association;

(8)  an attorney specializing in representing parents in juvenile proceedings appointed by the Vermont bar association;

(9)  the commissioner of public safety or his or her designee; and

(10)  a representative from the Vermont center for crime victim services.

Fourth:  By striking Sec. 8 in its entirety and adding the following Secs.

8–15 to read:

Sec. 8.  14 V.S.A. § 3061 is amended to read:

§ 3061.  DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

* * *

(4)  “Mentally retarded” “Developmentally disabled” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior;

* * *

(11)  “Respondent” means a person who is the subject of a petition filed pursuant to section 3063 of this title or a ward who is the subject of any subsequent petition, motion or action filed pursuant to this subchapter.

(12)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)  “Ward” means a person under a guardianship order.

Sec. 9.  14 V.S.A. § 3065 is amended to read:

§ 3065.  COUNSEL

(a)(1)  Counsel shall be appointed for the respondent in initial proceedings relating to an involuntary guardianship up to and including the appointment of a guardian under section 3069 or 3070 of this title or dismissal of the petition under section 3068 of this title. Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

(A)  shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B)  shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C)  may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2)  Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to the any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.  Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent.  Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.  At a minimum, counsel shall endeavor to ensure that:

(1)  the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2)  there is no less restrictive alternative to guardianship or to the matter before the court;

(3)  proper due process procedure is followed;

(4)  no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5)  the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6)  the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7)  if a guardian is appointed, the initial order or any subsequent order is least restrictive of the ward’s personal freedom consistent with the need for supervision.

(c)  Respondent’s counsel shall be compensated from the respondent’s estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

Sec. 10.  14 V.S.A. § 3068a is added to read:

§ 3068a.  RIGHTS OF A WARD

A ward retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and United States constitutions and all the laws and regulations of Vermont and the United States.  These rights include:

(1)  The right to participate in decisions made by the guardian and to have personal preferences followed unless:

(A)  the preference is unreasonable and would result in actual harm; or

(B)  the ward does not have a basic understanding of the benefits and consequences of his or her chosen preference.

(2)  The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the ward. 

Sec. 11.  14 V.S.A. § 3069(b)(5) is amended to read:

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, subsection 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment;

Sec. 12.  14 V.S.A. § 3073 is amended to read:

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)(1)  When a guardian who has been granted the power to choose or change the residence of the ward pursuant to section subdivision 3069(b)(1) of this title wishes to admit the ward to a nursing home or change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so. 

(2)  For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, the a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, group home or other similar facility without petitioning the probate court for prior permission without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after the any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.  A hearing on the change in residential placement

(2)  Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.

(3)  Any party may request a hearing on a change in residential placement.  The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.

(c)  In a hearing on a change of placement, the court shall consider:

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

(3)  the wishes of the ward, if known; and

(4)  whether the guardian has considered alternatives.

Sec. 13.  STUDY; GUARDIANSHIP MONITORS

(a)  The general assembly finds:

(1)  Current law requires guardians to file annual reports with the court about the financial and personal status of the person in need of guardianship. Frequently, annual accountings and personal status reports either are not filed or are filed but contain incomplete or inaccurate information.

(2)  Currently, courts may not have the resources to monitor every guardianship and must rely on the information provided by the guardian in the annual report to identify problems that arise in the guardianship.  Mistakes, conflicts of interest, and abuses of power may go unnoticed unless the guardian or a person interested in the welfare of the ward brings it to the court’s attention.

(3)  Current law requires annual notices to wards of the right to petition to terminate or modify guardianships.  Even when annual notices are sent, wards may not be able to take steps on their own to bring issues to the attention of the court, even when real issues exist.

(4)  A system of comprehensive monitoring may help protect the rights and interests of persons under guardianship.

(b)  A committee is established to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts.

(c)  The committee shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.  The association shall designate one of its appointees as the convening authority.

(2)  A member of the court administrator’s office.

(3)  A representative of the elder law committee of the Vermont bar association.

(4)  A representative of the disability law committee of the Vermont bar association.

(5)  A representative of Vermont Legal Aid, Inc.

(6)  Two representatives appointed by the secretary of the agency of human services, including a representative from the department of disabilities, aging, and independent living.

(7)  A representative of the community of Vermont elders.

(8)  A representative of Vermont protection and advocacy.

(9)  A representative of the Vermont coalition of disability rights.

(d)  The committee shall 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, a complete description, analysis, and recommendations for the following:

(1)  The duties and responsibilities of the monitor.

(2)  The number of monitors needed to staff a pilot program.

(3)  The location and supervision of the monitor.

(4)  The relationship of the monitor to the probate judges and the court administrator’s office.

(5)  The average caseload of a monitor.

(6)  The cost of establishing a pilot guardianship monitor program and the cost of a statewide guardianship monitor program.

(7)  The probate court districts which will be included in a pilot program.

(8)  The method for measuring the outcome of a pilot program.

(9)  The duration of a pilot program.

Sec. 14.  STATUTORY REVISION

The office of legislative council shall revise subchapter 12 of chapter 111 of Title 14 by substituting the term “developmentally disabled” for the term “mentally retarded” wherever it appears.

Sec. 15.  EFFECTIVE DATE

Secs. 7 and 13 of this act shall take effect upon passage, and the remainder of the act shall take effect August 1, 2006.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us