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H.439

Introduced by   Representative Kainen of Hartford

Referred to Committee on

Date:

Subject:  Human services; judicial proceedings; placement of child in need of care or supervision

Statement of purpose:  This bill proposes to require the department for children and family services to prioritize placement of a child with a relative or family member if it is in the best interests of the child.  The bill also permits a party to request that the court review placement determinations made by the department.

AN ACT RELATING TO PLACEMENT OF A CHILD IN NEED OF CARE OR SUPERVISION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  33 V.S.A. § 5502 is amended to read:

§ 5502.  DEFINITIONS AND PROVISIONS OF GENERAL APPLICATION

(a)  As used in this chapter, unless the context otherwise requires:

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(10)  “Legal custody” means the legal status created by order of the juvenile court under the authority of this chapter which invests in a party to a proceeding under this chapter or another person, which party or person may also be the guardian of the person of the minor, the right to have the physical possession of a minor and to determine where and with whom he the child shall live, the authority to consent to major medical, psychiatric, and surgical treatment, and the right and duty to protect, train, and discipline him the child and to provide him the child with food, shelter, education, and ordinary medical care, all subject to the powers, rights, duties, and responsibilities of the guardian of the person of the minor and subject to any residual parental rights and responsibilities. 

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(12)  “Child in need of care or supervision” means a child who:

(A)  Has been abandoned or abused by his or her parents, guardian, or other custodian; or

(B)  Is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being, and there is no relative, family member, or person designated by the parent who is available to provide such care; or

(C)  Is without or beyond the control of his or her parents, guardian, or other custodian, or being subject to compulsory school attendance, is habitually and without justification truant from school.

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(b)  The commissioner of social and rehabilitation the department for children and family services or the commissioner of corrections may delegate any his or her statutory authority conferred on him by statute to any designee named by him he or she names in writing.

Sec. 2.  33 V.S.A. § 5514(a) is amended to read:

(a)  A child taken into custody under section 5510 of this title and not immediately released to his the child’s parents, guardian, or custodian, or delivered to a designated shelter, shall be by order of the court provided temporary shelter care or detention prior to a detention hearing on a petition held under this chapter or a hearing before a probate or other court upon a transfer thereto under section subsection 5529(b) of this title in one or more of the following places:

(1)  The home of his the child’s parents, guardian, custodian, relative, family member, or other suitable person designated by the court, upon their an undertaking to bring the child before the court at the detention hearing,.

(2)  A licensed foster home or a home approved by the court,.

(3)  A facility operated by a licensed child caring agency, .

(4)  A detention home or center for delinquent children which is under the direction or supervision of or approved by the department of social and rehabilitation for children and family services, or .

(5)  In the event that the child has been or will be or may be transferred under section subsection 5529(b) of this title, in any other suitable place designated by the court; or shall transfer legal custody of the child to the commissioner of social and rehabilitation for children and family services, if the court believes the child may be found delinquent, if the court believes the child may be found in need of care or supervision, pending such detention or other hearing.

Sec. 3.  33 V.S.A. § 5515(f) is added to read:

(f)  If the state seeks to continue detention, the commissioner shall file an affidavit with the court prior to the detention hearing attesting to the department’s efforts to place the child with a suitable relative or family member.  The court shall order custody of a child placed with the commissioner only if the court finds that placement with a relative or family member is not in the best interests of the child.

Sec. 4.  33 V.S.A. § 5523(d) is amended to read:

(d)  There shall be no publicity given by any person to any proceedings under the authority of this chapter except with the consent of the child and the child’s parent or guardian.  This subsection shall not prohibit a victim’s exercise of his or her rights under sections 5529a and 5529g of this title, 13 V.S.A. § 5320, and as otherwise provided by law.  This subsection shall not be used to shield the department for children and family services from public criticism provided that the identity of the child is not revealed.

Sec. 5.  33 V.S.A. § 5527(b) is amended to read:

(b)  The disposition report required in accordance with subsection (a) of this section shall include as appropriate:

(1)  An assessment of the child’s medical, psychological, social, educational, and vocational needs;.

(2)  A description of the resources in the child’s home, school, and community;.

(3)  A description of family resources available to the child and what efforts are being made to place the child with a relative or family member.

(4)  A statement of the goals and objectives of treatment;.

(4)(5)  A recommendation as to disposition of the case, including the case plan, and if possible, the length of time the child may benefit from the plan; and.

(5)(6)  A recommendation from the parties.  The commissioner shall explain at the disposition hearing, if requested, why the recommendations provided for in this subdivision were accepted, rejected, or modified.  In preparing this report, the assistance of relatives or family members, local school officials, state and community agencies, and mental health centers may be obtained.

Sec. 6.  33 V.S.A. § 5532 is amended to read:

§ 5532.  MODIFICATION OR VACATION OF ORDERS

(a)  An order of the court may be set aside by a subsequent order of that court or, upon appeal from a denial thereof by that court, by a court upon appeal therefrom, when it appears that the initial order was obtained by fraud or mistake sufficient therefor in a civil action, or that the court lacked jurisdiction over a necessary party or of the subject matter, or that newly discovered evidence so requires.  An order of the court may also be amended, modified, set aside or terminated by that court at any time upon petition therefor by a party or on its own motion on the ground that changed circumstances so require in the best interests of the child.  An order granting probation to a person found to be delinquent may be revoked and any other disposition made under the authority of this chapter on the ground that the conditions of probation have not been observed.  A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision and a child who has been adjudged a delinquent child as a result of a petition alleging delinquency may not be subsequently adjudged a child in need of care or supervision unless a separate petition alleging that the child is in need of care or supervision is filed.

(b)  The court shall have the authority to review placement determinations made by the department for children and family services to determine whether the placement is in the best interests of the child. 

(c)  Any party to the proceedings, and any person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this section.  The petition shall set forth in concise language the grounds upon which the relief is requested.  Any order under this section shall be made after notice and hearing as in the case of a petition filed under section 5516 of this title, except that in such hearing under this section, all evidence helpful in determining the questions presented, including oral and written reports, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.  After such hearing, the court shall deny or grant such relief as the evidence may warrant, consistent with the provisions of this chapter.

Sec. 7.  33 V.S.A. § 5534 is amended to read:

§ 5534.  PROTECTIVE ORDER

(a)  On petition of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of a person if:

(1)  an order of disposition of a delinquent child or a child in need of care or supervision has been or is about to be made in a proceeding under this chapter, or any other time after custody is placed with the commissioner of the department for children and family services; and

(2)  the court finds that such conduct is or may be detrimental or harmful to the child, and will tend to defeat the execution of the order of disposition made or to be made, or the court finds that the actions of the department for children and family services may be detrimental or harmful to the best interests of the child; and

(3)  notice of the petition or motion and the grounds therefor, and an opportunity to be heard thereon have been given to the person against whom the order is directed.

(b)  In a proceeding under this chapter, any party may petition the court to review placement determinations made by the department for children and family services.  The court shall have the authority to require the department to file a request with the court for a modification of a disposition order prior to change in placement. 

Sec. 8.  33 V.S.A. § 5540 is amended to read:

§ 5540.  BEST INTERESTS OF THE CHILD

At the time of the review under section 5531 of this title, a modification hearing under section 5532 of this title, or at any time a petition is filed by the department of social and rehabilitation for children and family services for custody of a minor without limitation as to adoption, the court shall consider the best interests of the child in accordance with the following:

(1)  The interaction and interrelationship of the child with his or her natural parents, his foster parents if any, his siblings, other relatives and family members, and any other person who may significantly affect the child’s best interests;

(2)  The child’s adjustment to his the child’s home, school, and community;

(3)  The likelihood that the natural parent will be able to resume his or her parental duties within a reasonable period of time; and

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Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us