Download this document in MS Word format


AutoFill Template

S.194

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

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

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  As stated in 33 V.S.A. § 5501, one of the primary purposes of Vermont’s current approach to the juvenile system of justice is “to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide a program of treatment, training, and rehabilitation consistent with the protection of the public interest.”  This policy recognizes that children are not simply small adults and that they should be given special consideration by the courts due to their youth, immaturity, and amenability to rehabilitation.

(2)  Currently, applications for sealing are filed in less than five percent of delinquency adjudications.  The general assembly believes this is because children or adults who have a past adjudication of delinquency are often under the false impression that such records are completely sealed under our current system. 

(3)  This act establishes a system that favors the sealing of juvenile records if, after a period of time, the juvenile does not commit a serious crime or offense, while allowing a judge the discretion to deny the sealing if he or she believes the juvenile has not been rehabilitated.  The act shifts the burden from the child to the state to prove that the child’s records should not be used against the child in the future.  If the state presents strong evidence that the child has not been rehabilitated, the general assembly is confident that the court will wisely order that the record not be sealed.

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

§ 5538.  SEALING OF RECORDS

(a)  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  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 to the proceeding if it two years have elapsed since the final discharge of the person unless, on motion, the court finds;:

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

(2)  He the person has not been convicted of a felony or misdemeanor involving moral turpitude listed crime 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)(2)  His rehabilitation of the person has not been attained to the satisfaction of the court. 

(b)  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 of the court applicable 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.  

(c)  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 of the court applicable 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.

(d)  The application or motion and the order may Orders issued in accordance with this section shall include the files and records specified in sections 5536 and 5537 of this title.

(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)(e)  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 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.

(d)(f)(1)  Inspection of the files and records included in the order may thereafter be permitted by the court only either upon petition by the person who is the subject of such records, and only to those persons named therein, or upon petition of the commissioner for children and families for good cause shown.  Good cause shown shall be limited to:

(A)  circumstances in which the department for children and families requires access to such files and records to prepare a defense to a legal action filed against the department in relation to incidents or persons that are the subject of such files and records; or                            

(B)  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.

(2)  The order unsealing a record must state whether the record is unsealed entirely or in part.  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)(g)  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 of the court applicable 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.  

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

Sec. 3.  3 V.S.A. § 163(e) is amended to read:

§ 163.  JUVENILE COURT DIVERSION PROJECT

* * *

(e)  Within 30 days of the two-year anniversary of a successful completion of juvenile diversion, the court shall provide notice to all parties of record of the court’s intention to order the sealing of all court files and records, law enforcement records other than entries in the juvenile court diversion project’s centralized filing system, fingerprints, and photographs applicable to a juvenile court diversion proceeding.  The court shall give the state’s attorney an opportunity for a hearing to contest the sealing of records.  The court shall seal the records if it unless, upon motion, the court finds:

(1)  two years have elapsed since the successful completion of the juvenile court diversion program by the participant and the dismissal of the case by the state’s attorney;

(2)  the participant has not been convicted of a subsequent felony or misdemeanor during the two-year period, and no or proceedings are pending seeking such conviction; and or

(3)(2)  rehabilitation of the participant has not been attained to the satisfaction of the court.

Sec. 4.  33 V.S.A. § 5514 is amended to read:

§ 5514.  DETENTION; TEMPORARY CARE PENDING HEARING

(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 5529(b) of this title in one or more of the following places:

(1)  The home of his the child’s parents, guardian, custodian, or other suitable person designated by the court, upon their 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 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 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.

(b)  If the court concludes that a child taken into custody under section 5510 of this title 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 shall have sole authority to place the child in a family home, a treatment, rehabilitative, detention, or educational institution or facility, subject to the provisions of section 5535 of this title.

(c)  If a parent, guardian or custodian fails, when requested to bring a child before the court as provided in subdivision (1) of subsection (a) of this section, the court may issue its warrant directing that the child be taken into custody and brought before the court.

(c)(d)  A child shall not be detained under this section in a jail or other facility intended or used for the detention of adults, unless the child is alleged to have committed a crime punishable by death or life imprisonment, and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(d)(e)  The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor, who is or appears to be under the age of 18 years, is received at the facility other than pursuant to subsection (c)(d) of this section or section 5530 of this title, and shall deliver the minor to the court upon request of the court, or transfer the minor to the detention facility designated by the court by order.

Sec. 5.  33 V.S.A. § 5515(d) is amended to read:

(d)  If a petition with respect to the child has been filed with the court under section 5517 of this title during or prior to the detention hearing, and in the event the court finds, upon the detention hearing, that the continued detention of the child would be to his the child’s best interests and welfare or that public safety and protection reasonably require such detention, he it shall forthwith order the continued detention or custody of the child pending the full hearing held under section 5519 of this title.  Upon a finding at the detention hearing 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 shall 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. 

Sec. 6.  33 V.S.A. § 5515(f)(4) is amended to read:

(f)  At the conclusion of the detention hearing, the court shall make written findings on whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  "Reasonable efforts" means the exercise of due diligence by the department for children and families to use appropriate and available services to prevent unnecessary removal of the child from the home.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may include:

* * *

(4)  the parental rights of the parent with respect to a sibling have been terminated involuntarily.

Sec. 7.  STUDY

(a)  A committee shall be established 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. 

(b)  The committee shall include:

(1)  the administrative judge or his or her designee;

(2)  the juvenile defender;

(3)  the executive director of the department of state’s attorneys and sheriffs or his or her designee;

(4)  the commissioner of the department for children and families or his or her designee;

(5)  the director of juvenile justice;

(6)  the attorney general or his or her designee;

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

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

(c)  The committee shall report its findings and recommendations to the house and senate committees on judiciary by January 15, 2007, whereafter the committee shall cease to exist.

Sec. 8.  EFFECTIVE DATE

Sec. 7 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