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BILL AS INTRODUCED 2007-2008

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H.615

Introduced by Representatives Lippert of Hinesburg and Pugh of S. Burlington

Referred to Committee on

Date:

Subject:  Judicial proceedings; juveniles

Statement of purpose:  This bill proposes to reorganize the laws that address court procedure for delinquent and abused and neglected children to provide better clarity, making the statutes more user-friendly for both the legal practitioner and lay parties to these proceedings.  The body of juvenile case law developed over the last 30 years is preserved by maintaining the language and statutory phrases upon which the precedent is based.  The bill incorporates some current Vermont practices that are not in statute, as well as national best practices, including:

1.   Identifying clear standards for removing a child from the home.

2.   Permitting a child to remain in a home subject to court-ordered conditions and monitoring by the department for children and families.

3.   Identifying and locating noncustodial parents early in the process.

4.   Recognizing kinship placement as an option for the court at an early stage in the case.

5.   Addressing parent-child contact at each stage of the proceedings.

6.   Increasing frequency of reviews to ensure compliance with the case plan.

7.   Decreasing the time between a delinquent incident and adjudication.

8.   Extending jurisdiction of youthful offenders until age 22.

AN ACT RELATING TO JUVENILE JUDICIAL PROCEEDINGS

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

Sec. 1.  33 V.S.A. chapter 51 is added to read:

Chapter 51.  GENERAL PROVISIONS

§ 5101.  Purposes  

(a)  The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:

(1)  To provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters.

(2)  To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation which assure:

(A)  balanced attention to the protection of the community;

(B)  accountability to victims and the community for offenses; and

(C)  the development of competencies to enable children to become responsible and productive members of the community.

(3)  To preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety.

(4)  To assure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters.

(5)  To achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children.

(6)  To provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced.

(b)  The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent with this chapter.

§ 5102.  Definitions and provisions of general application  

As used in the juvenile judicial proceedings chapters, unless the context otherwise requires:

(1)  “Child” means any of the following:

(A)  An individual who is under the age of 18 and is a child in need of care or supervision as defined in subdivision (2)(A), (B), or (D) of this section (abandoned, abused, neglected, or truant).

(B)(i)  An individual who is under the age of 18, is a child in need of care or supervision as defined in subdivision (2)(C) of this section (unmanageable), and was under the age of 16 at the time the petition was filed; or

(ii)  an individual who is between the ages of 16 to 17.5, is a child in need of care or supervision as defined in subdivision (2)(C) of this section (unmanageable), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness, and whose needs transcend any one department of the agency of human services and require complicated clinical interventions from multiple organizations. 

(C)  An individual who has been alleged to have committed or has committed an act of delinquency after becoming ten years of age and prior to becoming 18 years of age; provided, however:

(i)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 10 but not the age of 14 may be treated as an adult as provided therein;

(ii)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14 but not the age of 16 shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to juvenile court in accordance with the juvenile judicial proceedings chapters;

(iii)  that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder as defined in section 2301 of Title 13 if committed by an adult may be subject to delinquency proceedings; and

(iv)  that an individual may be considered a child for the period of time the juvenile court retains jurisdiction under section 5104 of this title.   

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

(A)  has been abandoned or abused by the child’s parents, guardian, or other custodian;

(B)  is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;

(C)  is without or beyond the control of his or her parents, guardian, or other custodian; or

(D)  is habitually and without justification truant from compulsory school attendance.

(3)  “Commissioner” means the commissioner of the department for children and families or the commissioner’s designee.

(4)  “Court” means the Vermont family court.

(5)  “Custodian” means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of the court in a juvenile proceeding.

(6)  “Delinquent act” means an act designated a crime under the laws of this state, or of another state if the act occurred in another state, or under federal law.  A delinquent act shall include 7 V.S.A. §§ 656 and 657; however, it shall not include:

(A)  Snowmobile offenses in subchapter 1 and motorboat offenses in subchapter 2 of chapter 29 of Title 23, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323.

(B)  Motor vehicle offenses committed by an individual who is at least 16 years of age, except for violations of subchapter 13 of chapter 13 and of section 1091 of Title 23.        

(7)  “Delinquent child” means a child who has been adjudicated to have committed a delinquent act.

(8)  “Department” means the department for children and families.

(9)  “Guardianship” means the legal status created by order of the court


in a juvenile proceeding which invests in a party or another person the following authority and rights:

(A)  The authority to make decisions which concern the child and are of substantial legal significance, including the authority to consent to marriage and enlistment in the armed forces of the United States, and the authority to represent the child in legal actions.

(B)  The right to reasonable contact with the child, except to the extent that such right has been limited by court order.

(C)  The authority to consent to the adoption of the child if so specifically ordered by the court.

(10)  “Judge” means a judge of the family court.

(11)  “Juvenile judicial proceedings chapters” means this chapter and chapters 52 and 53 of this title.

(12)  “Juvenile proceeding” means a proceeding in the family court under the authority of the juvenile judicial proceedings chapters.

(13)(A)  “Legal custody” means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters which invests in a party to a juvenile proceeding or another person the following rights and responsibilities:

(i)  The right to have physical possession of a child and to determine where and with whom the child shall live.

(ii)  The authority to consent to major medical, psychiatric, and surgical treatment for a child.

(iii)  The responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care. 

(B)  The powers, rights, duties, and responsibilities of the custodian are subject to the powers, rights, duties, and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities.  A party or person who has legal custody of a child may be the guardian of the child.

(14)  “Listed crime” means the same as defined in 13 V.S.A. § 5301.

(15)  “Officer” means a law enforcement officer, including a state police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the criminal justice training council pursuant to section 2358 of Title 20.

(16)  “Party” includes the following persons:

(A)  The child with respect to whom the proceedings are brought.

(B)  The custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition. 

(C)  The noncustodial parent for the purposes of custody, visitation, and such other issues for which the court may determine they are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance.

(D)  The state’s attorney.

(E)  The commissioner.

(F)  Such other persons as appear to the court to be proper and necessary to the proceedings.

(17)  “Probation” means the legal status created by order of the family court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the department under conditions specified in the court’s juvenile probation certificate and subject to return to and change of legal status by the family court for violation of conditions of probation at any time during the period of probation.

(18)  “Protective supervision” means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters and chapters 52 and 53 of this title whereby a child is permitted to remain in the custody of a parent, custodian, guardian, relative, or other person, subject to conditions ordered by the court.  If the court orders a child to be subject to protective supervision, the department shall have the authority to take reasonable steps to monitor compliance with the court’s order, including unannounced visits to the child’s home.

(19)  “Reasonable efforts” means the exercise of due diligence by the department to use appropriate and available services to prevent unnecessary removal of the child from the home or finalize a permanency plan.  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 exist if:

(A)  a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;

(B)  a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;

(C)  a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or

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

(20)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody and guardianship of the child, including the right to reasonable contact with the child, the responsibility for support, and, unless that authority has been transferred to a guardian, consent to adoption.

(21)  “Shelter” means a shelter designated by the commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.

(22)  “Youthful offender” means an offender who has been found to be a youthful offender pursuant to section 5281 of this title.

§ 5103.  Jurisdiction  

(a)  The family court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.

(b)  Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other family court proceedings and any order of another court of this state, to the extent they are inconsistent.  This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.

(c)  Except as otherwise provided by this title, jurisdiction over a child shall not be extended beyond the child’s 18th birthday.

(d)  The court may terminate its jurisdiction over a child prior to the child’s 18th birthday by order of the court.  If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:

(1)  Upon the discharge of a child from juvenile probation, providing the child is not in the custody of the commissioner.

(2)  Upon an order of the court restoring custody and guardianship to a parent or guardian without conditions or protective supervision.

(3)  Upon the adoption of a child following a termination of parental rights proceeding.

§ 5104.   Retention of jurisdiction over youthful

               offenders    

(a)  The family court may retain jurisdiction over a youthful offender up to the age of 22.

(b)  In relation to the retention of jurisdiction provision of subsection (a) of this section, any party may request, or the court on its own motion may schedule, a hearing to determine the propriety of extending the jurisdictional time period.  This hearing shall be held within the three-month time period immediately preceding the child’s 18th birthday, and the order of continued jurisdiction shall be executed by the court on or before that birthday. In determining the need for continued jurisdiction, the court shall consider the following factors:

(1)  the extent and nature of the child’s record of delinquency;

(2)  the nature of past and current treatment efforts and the nature of the child’s response to them;

(3)  the prospects for reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the court; and

(4)  whether the safety of the community will best be served by a continuation of jurisdiction.

(c)  A hearing under subsection (b) of this section shall be held in accordance with the procedures provided in section 5113 of this title.

§ 5105.  Venue and Change of Venue 

(a)  Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:

(1)  the child is domiciled;

(2)  the acts constituting the alleged delinquency occurred; or

(3)  the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.

(b)  If a child or parent changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the family court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses.

§ 5106.  Powers and duties of commissioner

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the court, and in addition to any other powers granted to the commissioner under the laws of this state, the commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters: 

(1)  To undertake assessments and make reports and recommendations to the court as authorized by the juvenile judicial proceedings chapters.

(2)  To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.

(3)  To supervise and assist a child who is placed under the commissioner’s supervision or in the commissioner’s custody by order of the court.

(4)  To place a child who is in the commissioner’s custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution unless ordered otherwise at or after a temporary care hearing and subject to the provisions of sections 5292 and 5293 of this title.

(5)  To make appropriate referrals to private or public agencies.

(6)  To perform such other functions as are designated by the juvenile judicial proceedings chapters.

§ 5107.  Contempt power   

Subject to the laws relating to the procedures therefor and the limitations thereon, the court has the power to punish any person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

§ 5108.  Authority to issue warrants  

(a)  The court may order a parent to appear at any hearing or a parent to appear with the child who is the subject of a petition.

(b)  If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person’s appearance.  If the child is with the parent, guardian, or legal custodian, the court may issue a warrant for the parent to appear in court with the child or, in the alternative, the court may issue an order for an officer to pick up the child and bring the child to court.

(c)  If a summons cannot be served or the welfare of the child requires that the child be brought forthwith into the custody of the court, the court may issue a warrant for the parent, guardian, or legal custodian to appear in court with the child.  In the alternative, the court may issue an order for an officer to pick up the child and bring the child to court during court hours.

(d)  A person summoned who fails to appear without reasonable cause may be found in contempt of court.

§ 5109.  Subpoena 

Upon application of a party or on the court’s own motion, the clerk of the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters.

§ 5110.  Conduct of hearings 

(a)  Hearings under the juvenile judicial proceedings chapters shall be conducted by the court without a jury and shall be confidential.  

(b)  The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court.  This subsection shall not prohibit a victim’s exercise of his or her rights under sections 5333 and 5234 of this title, and as otherwise provided by law. 

(c)  There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child and the child’s parent or guardian.  A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings.

§ 5111.  Noncustodial Parents    

(a)  If a child is placed in the custody of the department and the identity of a parent has not been legally established at the time the petition is filed, the court may order that the mother, the child, and the alleged father submit to genetic testing and may issue an order establishing parentage pursuant to subchapter 3A of Title 15.  A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record and may be used in any legal proceeding in which it is necessary to establish the parentage of the child.

(b)  If a child is placed in the custody of the department, the department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible.  A hearing shall not be delayed by reason of the inability of the department to locate or serve a noncustodial parent. 

(c)  The court may order a custodial parent to provide the department with information regarding the identity and location of a noncustodial parent.

(d)  As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons.  Thereafter, the court shall mail notices of the hearing to the noncustodial parent.  The noncustodial parent shall be responsible for providing the court with information regarding any changes in address.

§ 5112.  Attorney and guardian ad litem for child  

(a)  The court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. 

(b)  The court shall appoint a guardian ad litem for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.  In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child.  The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

§ 5113.  Modification or vacation of orders 

(a)  An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.

(b)  Upon motion of a party or the court’s own motion, the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.  The motion shall set forth in concise language the grounds upon which the relief is requested.

(c)  Any order under this section shall be made after notice and hearing; however, the court may waive the hearing upon stipulation of the parties.  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.

§ 5114.  Best interests of the child 

At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, 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, siblings, foster parents, if any, and any other person who may significantly affect the child’s best interests.

(2)  The child’s adjustment to his or her home, school, and community.

(3)  The likelihood that the natural parent will be able to resume parental duties within a reasonable period of time.

(4)  Whether the natural parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child’s welfare.

§ 5115.  Protective order 

(a)  On motion 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 the court finds that such conduct is or may be detrimental or harmful to a child

(b)  The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.

(c)  Upon a showing that there is a risk of immediate harm to a child, the court may issue a protective order ex parte.  A hearing on the motion shall be held within 10 days of the issuance of the order.

(d)  The court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.

§ 5116.  Costs and expenses for care of child 

(a)  The commissioner may incur such expenses for the proper care, maintenance, and education of a child, including without limitation, the expenses of medical, surgical, or psychiatric examination or treatment, as the commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.

(b)  The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of Title 32 shall be borne by the juvenile court.

(c)  The court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.

(d)  The court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.

(e)  A child support order shall only remain in effect as long as the child who is the subject of the support order is in the custody of the commissioner and placed with someone other than the parent or parents responsible for support.

§ 5117.  Juvenile court records  

(a)  Court and law enforcement reports and files concerning a person subject to the jurisdiction of the juvenile court shall be maintained separate from the records and files of other persons.  Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person.  However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult, the court, upon request of the victim, shall make the child’s name available to the victim of the delinquent act.  If the victim is incompetent or deceased, the child’s name shall be released, upon request, to the victim’s guardian or next of kin.

(b)(1)  Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(A)  A juvenile court having the child before it in any proceeding.

(B)  The officers of public institutions or agencies to whom the child is committed as a delinquent child.

(C)  A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person’s parole or discharge or in exercising supervision over the person.

(D)  Court personnel, the state’s attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child’s guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child.

(E)  The child who is the subject of the proceeding, the child’s parents, and the child’s guardian may inspect such records and files upon approval of the family court judge.

(F)  Any other person who has a need to know may be designated by order of the family court.

(2)  Records and files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c)  Such records and files shall be available to state’s attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(d)  Any records or reports relating to a matter within the jurisdiction of the juvenile court prepared by or released by the court or the department for children and families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

(e)  This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119.

§ 5118.  Limited exception to confidentiality of records

              of juveniles maintained by the family court 

(a)  For the purposes of this section:

(1)  “Delinquent act requiring notice” means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A.

§ 5301(7).

(2)  “Independent school” means an approved or recognized independent school under 16 V.S.A. § 166.

(b)  While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont’s public and independent schools.

(c)  Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school’s headmaster.

(d)  The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked: “UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.”  The envelope in which the notice is sent by the court shall be marked:  “CONFIDENTIAL:  TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY.”

(e)  The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child’s school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students.  Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students.  “Need to know” shall be narrowly and strictly interpreted.  Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child’s parent or guardian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile’s probation officer.

(f)  The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g)  The written notice shall be maintained by the superintendent or headmaster in a file separate from the child’s education record.  If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred.  If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h)  If custody of the child is transferred to the commissioner, or if the commissioner is supervising the child’s probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child’s rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i)  A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j)  Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

§ 5119.  Sealing of records  

(a)(1)  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds: 

(A)  the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or 

(B)  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.  The state’s attorney may object, and a hearing may be held to address the state’s attorney’s objection. 

(3)  The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

(4)  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before

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

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, 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)  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 

(2)  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 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.

(d)  Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section 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. 

(e)(1)  Except as provided in subdivision (2) of this subsection, 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 in the order. 

(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 (f) of this section. 

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

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

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

(iii)  a sheriff;

(iv)  a police chief; 

(v)  a state’s attorney; 

(vi)  the attorney general; 

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

(viii)  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. 

(f)(1)  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 in the record. 

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) 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. 

(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, 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. 

(h)(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. 

(i)  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. 

(j)  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. 

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

(l)  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. 

§ 5120.  Indian Child Welfare Act

The federal Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title.


Sec. 2.  33 V.S.A. chapter 52 is added to read:

Chapter 52.  DELINQUENCY PROCEEDINGS

Subchapter 1.  Commencement of Proceedings

§ 5201.  Commencement of Delinquency Proceedings  

(a)  Proceedings under this chapter shall be commenced by:

(1)  transfer to the court of a proceeding from another court as provided in section 5203 of this title; or

(2)  the filing of a delinquency petition by a state’s attorney.

(b)  If the proceeding is commenced by transfer from another court, no petition need be filed; however, the state’s  attorney shall provide to the court the name and address of the child’s custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known. 

(c)  Consistent with applicable provisions of Title 4, any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14, but not the age of 18, shall originate in district or superior court, provided that jurisdiction may be transferred in accordance with this chapter.

(d)  If the state requests that custody of the child be transferred to the department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.   

(e)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

§ 5202.  Order of adjudication; noncriminal

(a)(1)  An order of the juvenile court in proceedings under this chapter shall not:

(A)  be deemed a conviction of crime;

(B)  impose any civil disabilities sanctions ordinarily resulting from a conviction; or

(C)  operate to disqualify the child in any civil service application or appointment.

(2)  Notwithstanding subdivision (1) of this subsection, an order of delinquency in proceedings transferred under subsection 5203(b) of this title, where the offense charged in the initial criminal proceedings was a violation of those sections of Title 23 specified in subdivision 801(a)(1), shall be an event in addition to those specified therein, enabling the commissioner of motor vehicles to require proof of financial responsibility under chapter 11 of Title 23.

(b)  The disposition of a child and evidence given in a hearing in a juvenile proceeding shall not be admissible as evidence against the child in any case or proceeding in any other court except after a subsequent conviction of a felony in proceedings to determine the sentence.

§ 5203.  Transfer from other courts

(a)  If it appears to a district court that the defendant was under the age of 16 years at the time the offense charged was alleged to have been committed and the offense charged is not one of those specified in subsection 5204(a) of this title, that court shall forthwith transfer the case to the juvenile court under the authority of this chapter.

(b)  If it appears to a district court that the defendant was over the age of 16 years and under the age of 18 years at the time the offense charged was alleged to have been committed, or that the defendant had attained the age of 14 but not the age of 16 at the time an offense specified in subsection 5204(a) of this title was alleged to have been committed, that court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the minor shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(c)  If it appears to the state’s attorney that the defendant was over the age of 16 and under the age of 18 at the time the offense charged was alleged to have been committed and the offense charged is not an offense specified in subsection 5204(a) of this title, the state’s attorney may file charges in a juvenile court or the district court.  If charges in such a matter are filed in district court, the district court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the person shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(d)  Any such transfer shall include a transfer and delivery of a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case.  Upon any such transfer, that court shall order that the defendant be taken forthwith to a place of detention designated by the juvenile court or to that court itself, or shall release the child to the custody of his or her parent or guardian or other person legally responsible for the child, to be brought before the juvenile court at a time designated by that court.  The juvenile court shall then proceed as provided in this chapter as if a petition alleging delinquency had been filed with the court under section 5223 of this title on the effective date of such transfer.

(e)  A defendant in a criminal proceeding who has attained the age of 10 but not the age of 16 at the time an offense specified in subsection 5204(a) of this title is alleged to have been committed may file a motion requesting treatment as a youthful offender.  The court may transfer the proceeding to family court for youthful offender adjudication if it finds all of the following:

(1)  The defendant enters a plea of guilty or nolo contendere to the offense charged pursuant to Rule 11 of the Vermont Rules of Criminal Procedure.

(2)  The defendant is amenable to treatment or rehabilitation as a youthful offender.

(3)  Public safety will be secured by treating the defendant as a youthful offender.

(f)  A defendant in a criminal proceeding who has attained the age of 16 but not the age of 18 at the time the offense is alleged to have been committed may file a motion requesting treatment as a youthful offender.  The court may transfer the proceeding to family court for youthful offender adjudication if it finds all of the following:

(1)  The defendant enters a plea of guilty or nolo contendere to the offense charged pursuant to Rule 11 of the Vermont Rules of Criminal Procedure.

(2)  The defendant is amenable to treatment or rehabilitation as a youthful offender.

(3)  Public safety will be secured by treating the defendant as a youthful offender.


§ 5204.  Transfer from juvenile court 

(a)  After a petition has been filed alleging delinquency, upon motion of the state’s attorney and after hearing, the juvenile court may transfer jurisdiction of the proceeding to district court, if the child had attained the age of 10 but not the age of 14 at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

(1)  arson causing death as defined in 13 V.S.A. § 501;

(2)  assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b);

(3)  assault and robbery causing bodily injury as defined in 13 V.S.A.

§ 608(c);

(4)  aggravated assault as defined in 13 V.S.A. § 1024;

(5)  murder as defined in 13 V.S.A. § 2301;

(6)  manslaughter as defined in 13 V.S.A. § 2304;

(7)  kidnapping as defined in 13 V.S.A. § 2405;

(8)  unlawful restraint as defined in 13 V.S.A. § 2406 or 2407;

(9)  maiming as defined in 13 V.S.A. § 2701;

(10)  sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (2);

(11)  aggravated sexual assault as defined in 13 V.S.A. § 3253; or

(12)  burglary into an occupied dwelling as defined in 13 V.S.A.

§ 1201(c).

(b)  The state’s attorney of the county where the juvenile petition is pending may move in the juvenile court for an order transferring jurisdiction under subsection (a) of this section within ten days of the filing of the petition alleging delinquency.  The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the juvenile court may deny the motion to transfer jurisdiction.

(c)  Upon the filing of a motion to transfer jurisdiction under subsection (b) of this section, the juvenile court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:

(1)  there is probable cause to believe that the child committed an act listed in subsection (a) of this section; and

(2)  public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to juvenile courts and delinquent children.

(d)  In making its determination as required under subsection (c) of this section, the court may consider, among other matters:

(1)  The maturity of the child as determined by consideration of his or her age, home, environment, emotional, psychological and physical maturity, and relationship with and adjustment to school and the community.

(2)  The extent and nature of the child’s prior record of delinquency.

(3)  The nature of past treatment efforts and the nature of the child’s response to them.

(4)  Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(5)  The nature of any personal injuries resulting from or intended to be caused by the alleged act.

(6)  The prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings.

(7)  Whether the protection of the community would be better served by transferring jurisdiction from the juvenile court to the district court.

(e)  A transfer under this section shall terminate the jurisdiction of the juvenile court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.

(f)  The juvenile court, following completion of the transfer hearing, shall make written findings and, if the court orders transfer of jurisdiction from the juvenile court, shall state the reasons for that order.  If the juvenile court orders transfer of jurisdiction, the child shall be treated as an adult.  The state’s attorney shall commence criminal proceedings as in cases commenced against adults.

(g)  The order granting or denying transfer of jurisdiction shall not constitute a final judgment or order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.

(h)  If a person, who has not attained the age of 16 at the time of the alleged offense, has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section, but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the juvenile court for disposition.  A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in juvenile court throughout.  In case of an acquittal for a matter specified in this subsection and in case of a transfer to juvenile court under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.

(i)  The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child.

§ 5205.  Fingerprints; photographs

(a)  Fingerprint files of a child under the jurisdiction of the court shall be kept separate from those of other persons under special security measures limited to inspection by law enforcement officers only on a need-to-know basis unless otherwise authorized by the court in individual cases.

(b)  Copies of fingerprints shall be maintained on a local basis only and not sent to central state or federal depositories except in national security cases.

(c)  Fingerprints of persons under the jurisdiction of the court shall be removed and destroyed when:

(1)  the petition alleging delinquency with respect to which such fingerprints were taken does not result in an adjudication of delinquency; or

(2)  jurisdiction of the court is terminated, provided that there has been no record of a criminal offense by the child after reaching 16 years of age.

(d)  If latent prints are found at the scene of an offense and there is reason to believe that a particular child was involved, the child may be fingerprinted for purposes of immediate comparison, and if the result is negative, the fingerprint card shall be immediately destroyed.

(e)  No photograph shall be taken of any child when taken into custody without the consent of the judge unless the case is transferred for criminal proceeding.

(f)  A person who violates this section shall be imprisoned not more than six months or fined not more than $500.00, or both.


Subchapter 2.  Petition, Merits, and Disposition

§ 5221.  Citation and Notice to Appear at Preliminary

              Hearing 

(a)  Citation.  If an officer has probable cause to believe that a child has committed or is committing a delinquent act and the circumstances do not warrant taking the child into custody pursuant to subchapter 3 of this chapter, the officer may issue a citation to appear before a judicial officer in lieu of arrest.

(b)  Appearance in court.  A child who receives a citation described in this section shall appear at the court designated in the citation at the time and date specified in the citation unless otherwise notified by the court.

(c)  Notice to parent.  The officer who issues the citation shall also issue or cause to be issued a notice to the child’s parent, guardian, or custodian.  The notice shall indicate the date, time, and place of the preliminary hearing and shall direct the responsible adult to appear at the hearing with the child.

(d)  Form.  The citation to appear shall be dated and signed by the issuing officer and shall direct the child to appear before a judicial officer at a stated time and place.  The citation shall state the name of the child to whom it is addressed, the delinquent act that the child is alleged to have committed and a notice that the child is entitled to be represented by an attorney at the hearing and that an attorney will be appointed for the child if the parent or guardian is indigent and cannot afford an attorney.

(e)  Filing of citation.  The issuing officer shall sign the citation and file the citation and an affidavit as to probable cause with the state’s attorney.

§ 5222.  Petition; contents

(a)  The petition shall be supported by an affidavit as to probable cause.   The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child has committed a delinquent act, together with a statement that it is in the best interests of the child that the proceedings be brought.

(2)  The name, date of birth, telephone number, and residence address, if known, of the child and the custodial and noncustodial parents or the guardian or custodian of the child, if other than parent.   If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(b)  If a temporary care order has been issued or the state is requesting that custody be transferred to the commissioner, the petition shall contain jurisdictional information as required by the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

(c)  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 delinquency petition 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.

§ 5223.  Filing of Petition 

(a)  When notice to the child is provided by citation, the state’s attorney shall file the petition and supporting affidavit at least ten days prior to the date for the preliminary hearing specified in the citation.

(b)  The court shall send or deliver a copy of the petition and affidavit to all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing..

§ 5224.   Failure to Appear at Preliminary Hearing  

If a child or parent fails to appear at the preliminary hearing as directed by a citation, the court may issue a summons to appear, an order to have the child brought to court, or a warrant as provided in section 5108 of this title.

§ 5225.  Preliminary Hearing  

(a)  A preliminary hearing shall be held at the time and date specified on the citation or as otherwise ordered by the court.  If a child is taken into custody prior to the preliminary hearing, the preliminary hearing shall be at the time of the temporary care hearing. 

(b)  Counsel for the child shall be assigned prior to the preliminary hearing. 

(c)  At the preliminary hearing, the court shall appoint a guardian ad litem for the child.  The guardian ad litem may be the child’s parent.  On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent. 

(d)  At the preliminary hearing, a denial shall be entered to the allegations of the petition, unless the juvenile, after adequate consultation with the guardian ad litem and counsel, enters an admission.

(e)  The court may order the child to abide by conditions of release pending a merits or disposition hearing.

§ 5226.   Notification of conditions of release to victim in

                delinquency proceedings

A victim in a delinquency proceeding based on a listed crime shall be notified promptly by the prosecutor’s office when conditions of release are initially ordered or modified by the court, and of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  A victim in a delinquency proceeding based on an act that is not a listed crime shall be notified promptly by the court when conditions of release are initially ordered or modified by the court, and of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  Victims are entitled only to information contained in the conditions of release that pertain to the victim or a member of the victim’s family or current household.

§ 5227.  Timelines for pretrial and merits hearing  

(a)  Pretrial hearing:  At the preliminary hearing, the court shall set a date for a pretrial hearing on the petition.  The pretrial hearing shall be held within 15 days of the preliminary hearing.  In the event there is no admission or dismissal at the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  Except for good cause shown, a merits hearing, shall be held and merits adjudicated no later than 60 days from the date of the preliminary hearing.

§ 5228.  Constitutional Protections for a Child in

              Delinquency Proceedings

A child charged with a delinquent act need not be a witness against, nor otherwise incriminate, himself or herself.  Any extrajudicial statement, if constitutionally inadmissible in a criminal proceeding, shall not be used against the child.  Evidence illegally seized or obtained shall not be used over objection to establish the charge against the child.  A confession out of court is insufficient to support an adjudication of delinquency unless corroborated in whole or in part by other substantial evidence.


§ 5229.  Merits Adjudication  

(a)  The parties at a merits hearing in a delinquency proceeding shall be limited to the state’s attorney and the child who is the subject of the petition.  A merits adjudication hearing shall not proceed forward unless the child who is the subject of the delinquency petition is present in court.  

(b)  The state shall have the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act. 

(c)  If the child who is the subject of the delinquency petition enters an admission to the petition, the court shall not accept the admission without first addressing the child personally in open court and determining that:

(1)  the plea is voluntary;

(2)  the child understands the nature of the delinquent act charged, the right to contest the charge, and the rights which will be waived if the admission is accepted by the court; and

(3)  there is a factual basis for the delinquent act charged in the petition.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence. 

(e)  If the merits are contested, the court, after hearing the evidence, shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established beyond a reasonable doubt, the court shall dismiss the petition and vacate any orders transferring custody to the state or other person or any conditional custody orders.

(g)  If based on the child’s admission or the evidence presented, the court finds beyond a reasonable doubt that the child has committed a delinquent act, the court shall order the department to prepare a disposition case plan within 28 days of the merits adjudication and shall set the matter for a disposition hearing.  In no event, shall a disposition hearing be held later than 35 days after a finding that a child is delinquent.

(h)  The court may proceed directly to disposition providing that the child, the custodial parent, the state’s attorney, and the department agree.

§ 5230.  Disposition Case Plan

(a)  Filing of case plan.  The department shall file a disposition case plan no later than 28 days from the date of the finding by the court that a child is delinquent.  The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is delinquent.

(b)  Content of case plan.  A disposition case plan shall include, as appropriate:

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

(2)  An assessment of the impact of the delinquent act on the victim and the community, including, whenever possible, a statement from the victim.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the child’s and family’s strengths and risk factors.

(5)  Proposed conditions of probation which address the identified risks and provide for, to the extent possible, repair of the harm to victims and the community.  Proposed conditions may include a recommendation as to the term of probation. 

(6)  The plan of services shall describe the responsibilities of the child, the parents, the department, other family members, and treatment providers, including a description of the services required to achieve successful completion of the goals of probation and, if the child has been placed in the custody of the department, the permanency goal.

(c)  Case plan for child in custody.  If a child is in the custody of the commissioner at the time of disposition or if a transfer of custody is requested, the case plan shall include the following additional information:

(1)  A permanency goal if the child is in custody.  The long-term goal for a child found to be delinquent and placed in the custody of the department is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  A recommendation with respect to custody for the child and a recommendation for parent-child contact if appropriate.

(3)  A request for child support if the child has been placed in the custody of the department or the department recommends a transfer of custody.

§ 5231.  Disposition Hearing

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is delinquent.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.   If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of such termination shall be clear and convincing.  On all other issues, the standard of proof shall be a preponderance of the evidence. 

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order terminating parental rights of one or both parents and transfer of custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from the home.

§ 5232.  Disposition Order 

(a)  If a child is found to be a delinquent child, the court shall make such orders at disposition as may provide for:

(1)  the child’s supervision, care, and rehabilitation;

(2)  the protection of the community;

(3)  accountability to victims and the community for offenses committed; and

(4)  the development of competencies to enable the child to become a responsible and productive member of the community. 

(b)  In carrying out the purposes outlined in subsection (a) of this section, the court may:

(1)  Place the child on probation subject to the supervision of the commissioner, upon such conditions as the court may prescribe.  The length of probation shall be as prescribed by the court or until further order of the court.

(2)  Order custody of the child be given to the custodial parent, guardian, or custodian.  For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and the community.   Conditions may include protective supervision for up to one year following the disposition order unless further extended by court order.    The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(3)  Transfer custody of the child to a noncustodial parent, relative, or person with a significant connection to the child.

(4)  Transfer custody of the child to the commissioner.

(5)  Terminate parental rights and transfer custody and guardianship to the department without limitation as to adoption.

(c)  If the court orders the transfer of custody of the child pursuant to subdivisions (b)(4) and (5) of this section, the court shall establish a permanency goal for the child and adopt a case plan prepared by the department designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

§ 5233.  Victim’s statement at disposition proceeding;

              victim notification

(a)  Upon the filing of a delinquency petition, the court shall notify a victim of his or her rights as provided by law and his or her responsibilities regarding the confidential nature of juvenile proceedings.

(b)  A victim of a delinquent act has the right in a disposition proceeding to file with the court a written or recorded statement of the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act involving a listed crime also has the right to be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act that is not a listed crime may be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution if the court finds that the victim’s presence at the disposition hearing is in the best interests of the child and the victim.  The court shall take a victim’s views into consideration in the court’s disposition order.  A victim shall not be allowed to be personally present at any portion of the disposition hearing except to present the impact statement unless authorized by the court.

(c)  After an adjudication of delinquency has been made involving an act that is not a listed crime, the court shall inform the victim of the disposition of the case.  Upon request of the victim, the court may release to the victim the identity of the child if the court finds that release of the child’s identity to the victim is in the best interests of both the child and the victim.

(d)  After an adjudication of delinquency has been made involving an act that is a listed crime, the state’s attorney’s office shall inform the victim of the disposition in the case.  Upon request of the victim, the state’s attorney’s  office shall release to the victim the identity of the child. 

(e)  For the purposes of the section, disposition in the case shall include whether the child was placed on probation and information regarding conditions of probation relevant to the victim.

§ 5234.  Rights of victims in delinquency proceedings

              involving a  listed crime

The victim in a delinquency proceeding involving a listed crime shall have the following rights:

(1)  To be notified by the prosecutor’s office in a timely manner when a predispositional or dispositional court proceeding is scheduled to take place, and when a court proceeding of which he or she has been notified will not take place as scheduled.

(2)  To be notified by the prosecutor’s office as to whether delinquency has been found and disposition has occurred, including any conditions or restitution relevant to the victim.

(3)  To present a victim’s impact statement at the disposition hearing in accordance with subsection 5233(b) of this title and to be notified as to the disposition pursuant to subsection 5233(d) of this title.

(4)  Upon request, to be notified by the agency having custody of the delinquent child before he or she is discharged from a secure or staff-secured residential facility. The name of the facility shall not be disclosed.  An agency’s inability to give notification shall not preclude the release.  However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable.  Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.

(5)  To obtain the name of the child in accordance with sections 5226 and 5233 of this title.

(6)  To be notified by the court of the victim’s rights under this section.


Subchapter 3.  Children in Custody

§ 5251.  Taking into custody

A child may be taken into custody by an officer:

(1)  pursuant to the laws of arrest of this state;

(2)  pursuant to an order of the court under the provisions of this chapter and chapters 52 and 53 of this title; or

(3)  when the officer has reasonable grounds to believe that the child has committed a delinquent act; and that the child’s immediate welfare or the protection of the community, or both, require the child’s removal.   

§ 5252.  Request for Emergency Care Order 

(a)  If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s parents, guardian, or custodian and release the child to the care of child’s parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.

(b)  If the officer determines that the child’s immediate welfare, the protection of the community, or both, require the child’s continued removal from the home, the officer shall:

(1)  Take the child into custody pending either issuance of an emergency care order or direction from the state’s attorney to release the child.

(2)  Prepare an affidavit in support of a request for an emergency care order.  The affidavit shall include the reasons for taking the child into custody and, if known, placements with which the child is familiar, the names, addresses, and phone numbers of the child’s parents, guardians, or custodians, and the name, address, and phone number of any relative who has indicated an interest in taking temporary custody of the child.  If the department has knowledge of the reasons for the removal of the child, the department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer.

(3)  Provide the affidavit to the state’s attorney. 

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s parent, guardian, or custodian.    If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the family court on the next day that the court is open.  

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5253.   Emergency Care Order; CONDITIONAL CUSTODY

              ORDER

(a)(1)  Transfer of temporary custody.  The court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing if the court determines that:

(A)  there is probable cause that the child may have committed a delinquent act; and

(B)  continued residence in the home is contrary to the child’s welfare because:

(i)  the child cannot be controlled at home and is at risk of harm to self or others; or

(ii)  continued residence in the home will not safeguard the

well-being of the child and the safety of the community because of the serious and dangerous nature of the act the juvenile is alleged to have committed. 

(2)  The determination may be made without hearing or notice to the custodial parent, guardian, or custodian, provided that it is reasonably supported by the affidavit prepared in accordance with subsection 5152(b) of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain:  

(1)  A written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  The order shall contain:

(1)  Conditions and limitations necessary to protect the child, the community, or both.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the hearing. 

§ 5254.  Notice of Emergency Care Order and Temporary

              Care Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify them or cause them to be notified of the order, the date, time, and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parent, guardian, or custodian.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any non custodial parent and provide the noncustodial parent with notice of the date, hour, and place of the temporary care hearing and of the right to counsel.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent the custodial parent. 

§ 5255.  Temporary Care Hearing     

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title.  State holidays shall be excluded from the computation of 72 hours.  If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, the state’s attorney shall file a petition on or before the temporary care hearing.  If the state’s attorney elects not to file a petition, the state’s attorney shall so notify the court and the court shall vacate any emergency orders.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child.

(2)  The child’s custodial parent, guardian, or custodian, unless they cannot be located or fail to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  A representative of the department.

(7)  The state’s attorney.

(d)  A noncustodial parent shall have the right to be present at the hearing.  The hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent. 

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to section 5252 of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custody of the parent or guardian.

(5)  The identity of a noncustodial parent and any relatives known to the department who may be appropriate, capable, willing, and available to assume temporary custody of the child.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. Section 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible. The court may in its discretion limit testimony and evidence to only that which goes to the issues of removal and the child’s welfare.  

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5256.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s parent, guardian, or custodian, unless the court finds by a preponderance of the evidence that return in the home would be contrary to the welfare of the child because of any of the following:

(1)  The child cannot be controlled at home and is at risk of harm to self or others.

(2)  Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.

(3)  The child’s welfare is otherwise endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including:

(1)  A conditional custody order returning custody of the child to the parent, guardian, or custodian, subject to such conditions and limitation as the court may deem necessary and sufficient to protect the child.

(2)  An order transferring temporary custody of the child to a noncustodial parent or a relative.

(3)  A temporary care order transferring temporary custody of the minor child to the commissioner.

(c)(1)  If the court transfers custody of the child to the commissioner, the court shall issue a written temporary care order.  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.

(2)  If at the conclusion of the hearing the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(3)  The order may include such other provisions as may be necessary for the protection and welfare of the child, including:

(A)  Conditions of release.

(B)  An order for parent-child contact under such terms and conditions as are necessary for the protection of the child.

(C)  An order that the department provide the child with services.

(D)  An order that the department refer a parent to services.

(E)  A genetic testing order if parentage of the child is at issue.

(F)  An order that the department make diligent efforts to locate the noncustodial parent.

(G)  An order that the custodial parent provide the department with names of all potential noncustodial parents and relatives of the child.

§ 5257.  Filing of Initial Case Plan 

(a)  If a temporary care order is issued granting custody to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of the child’s removal from the home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that the child has committed a delinquent act.

§ 5258.  PostDisposition Review and Permanency Review

               for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to 5321 of this title.

Subchapter 4.  Probation

§ 5261.  Powers and responsibilities of the commissioner

              regarding juvenile probation

The commissioner shall be charged with the following powers and responsibilities regarding the administration of juvenile probation:

(1)  To maintain supervision of juveniles placed on probation.

(2)  To supervise the administration of juvenile probation services, including the authority to enter into contracts with community-based agencies to provide probation services which may include restitution and community service programs and to establish policies and standards and adopt rules regarding juvenile probation investigation, supervision, casework and caseloads, record-keeping, and the qualification of juvenile probation officers.

(3)  To prescribe rules, consistent with any orders of the court, governing the conduct of juveniles on probation.

§ 5262.  Conditions of probation

(a)  The conditions of probation shall be such as the court in its discretion deems necessary to ensure to the greatest extent reasonably possible that the juvenile will be provided a program of treatment, training, and rehabilitation consistent with the protection of the public interest.  The court shall provide as an explicit condition of every juvenile probation certificate that if the juvenile is adjudicated a delinquent or is convicted of an adult crime while on probation, then the court may find the juvenile in violation of the conditions of probation.

(b)  The court may, as a condition of probation, require that the juvenile:

(1)  Work faithfully for a prescribed number of hours at a community service activity acceptable to the court or, if so ordered by the court, at a community service activity acceptable to a probation officer.

(2)  Make restitution or reparation to the victim of the juvenile’s conduct for the damage or injury which was sustained.  When restitution or reparation is a condition of probation, the court shall fix the amount thereof.  The court shall further determine the amount the juvenile can or will be able to pay and fix the manner of performance.  In the alternative, the court may refer the determination of the amount, the ability to pay, and the manner of performance to a restorative justice panel.

(3)  Participate in programs designed to develop competencies to enable the child to become a responsible and productive member of the community. 

(4)  Refrain from purchasing or possessing a firearm or ammunition, any destructive device, or any dangerous weapon unless granted written permission by the court or juvenile probation officer.

(5)  Report to a juvenile probation officer at reasonable times as directed by the court or the probation officer.

(6)  Permit the juvenile probation officer to visit the juvenile at reasonable times at home or elsewhere.

(7)  Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer.

(8)  Answer all reasonable inquiries by the juvenile probation officer and promptly notify the probation officer of any change in address or employment.

(9)  Satisfy any other conditions reasonably related to the juvenile’s rehabilitation.

(10)  Reside at home or other location specified by the court.

(11)  Attend or reside at an educational or vocational facility or a facility established for the instruction, recreation, or residence of persons on probation.

(12)  Work faithfully at suitable employment or faithfully pursue a course of study or of vocational training that will equip the juvenile for suitable employment.

(13)  Undergo available medical treatment, participate in psychiatric treatment or mental health counseling, and participate in alcohol or drug abuse assessment or treatment on an outpatient or inpatient basis.


§ 5263.  Juvenile probation certificate 

(a)  When a juvenile is placed on probation, the court shall issue a written juvenile probation certificate setting forth:

(1)  the name of the juvenile;

(2)  the nature of the delinquent act committed by the juvenile;

(3)  the date and place of the juvenile delinquency hearing;

(4)  the order of the court placing the juvenile on probation; and

(5)  the conditions of the juvenile’s probation.

(b)  The juvenile probation certificate shall be furnished to and signed by the juvenile and the parents or the guardian or custodian of the child, if other than parent.  It shall be fully explained to them, and they shall be informed about the consequences of violating the conditions of probation, including the possibility of revocation of probation.  A copy of the juvenile probation certificate shall also be furnished to the commissioner.  The probation certificate is not invalidated if it is not signed as required by this subsection.

(c)  The signature of a parent, guardian, or custodian on a probation certificate shall constitute verification that the parent, guardian, or custodian understands the terms of juvenile probation and agrees to facilitate and support the child’s compliance with such terms and to attend treatment programs with the child as recommended by the treatment provider.

(d)  The juvenile probation certificate shall be full authority for the exercise by the commissioner of all the rights and powers over and in relation to the juvenile prescribed by law and by the order of the court.

§ 5264.  Modification of conditions  

(a)  During the period of probation, the court, on application of a juvenile probation officer, the state’s attorney, the juvenile, or on its own motion may modify the requirements imposed upon the juvenile or add further requirements authorized by section 5262 of this title.  A juvenile may request modification of a restitution issue determined by a restorative panel.

(b)  Whenever the court proposes any modification of the conditions of probation, the juvenile probationer shall have a reasonable opportunity to contest the modification prior to its imposition.

§ 5265.  Violation of conditions of probation 

(a)  If the juvenile fails to comply with conditions of probation, the state’s attorney, a juvenile probation officer, or the court on its own motion may initiate a proceeding to establish that the juvenile is in violation of probation conditions.

(b)  A juvenile probationer shall not be found in violation of conditions of probation unless the juvenile probationer is found to have violated a condition of probation, is again adjudicated a delinquent, or is convicted of a crime.


§ 5266.  Summons, apprehension, and detention of juvenile

              probationer

At any time before the discharge of a juvenile probationer or the termination of the period of probation:

(1)  The court may summon the juvenile to appear before it or may issue an order for the juvenile’s detention.

(2)  Any juvenile probation officer may detain a juvenile probationer or may authorize any officer to do so by giving the officer a written statement setting forth that the juvenile has, in the judgment of the juvenile probation officer, violated a condition of probation.  The written statement delivered with the juvenile by the detaining officer to the supervisor of the juvenile facility or residential program to which the juvenile is brought for detention shall be sufficient authority for detaining the juvenile.

(3)  Any juvenile probationer apprehended or detained in accordance with the provisions of this chapter shall have no right of action against the juvenile probation officer or any other person because of such apprehension or detention.

§ 5267.  Detention hearing 

(a)  Whenever a juvenile probationer is detained on the grounds that the juvenile has violated a condition of probation, the juvenile shall be given a hearing before a judicial officer prior to the close of business on the next court business day in order to determine whether there is probable cause to hold the juvenile for a violation hearing.  The juvenile and the adult who signed the probation certificate shall be given:

(1)  notice of the detention hearing and its purpose and the allegations of violations of conditions of probation; and

(2)  notice of the juvenile’s right to be represented by counsel and right to be assigned counsel if the juvenile is unable to obtain counsel.

(b)  At the detention hearing the juvenile shall be given:

(1)  an opportunity to appear at the hearing and present evidence on his or her own behalf; and

(2)  upon request, the opportunity to question witnesses against him or her unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness.

(c)  If probable cause is found to exist, the juvenile shall be held for a hearing to determine if the juvenile violated the conditions of probation.  If probable cause is not found to exist, the proceedings shall be dismissed.

(d)  A juvenile held in detention pursuant to a request to find the juvenile in violation of probation may be released by a judicial officer pending hearing or appeal.


§ 5268. Notice; violation hearing 

(a)  The court shall not find a juvenile in violation of the juvenile’s probation without a hearing, which shall be held promptly in the court in which the probation was imposed.  If the juvenile is held in detention prior to the hearing, the hearing shall take place at the earliest possible time.  Prior to the hearing, the juvenile and the adult who signed the probation certificate shall receive a written notice of the hearing at his or her last known address stating that the juvenile has allegedly violated one or more conditions of probation and which condition or conditions have been violated.  At the hearing, the juvenile shall have:

(1)  The right to legal counsel if requested by the juvenile probationer or the adult who signed the probation certificate to be assigned by the court in the same manner as in criminal cases.

(2)  The right to disclosure of evidence against the juvenile.

(3)  The opportunity to appear and to present evidence on the juvenile’s behalf.

(4)  The opportunity to question witnesses against the juvenile.

(b)  The state’s attorney having jurisdiction or the commissioner shall establish the alleged violation by a preponderance of the evidence, if the juvenile probationer contests the allegation.


§ 5269.  Disposition alternatives upon violation of

              conditions of probation 

If a violation of conditions of probation is established, the court may, in its discretion, modify the conditions of probation or order any of the disposition alternatives provided for in section 5232 of this title.

§ 5270.  Final judgment 

An order placing a juvenile on probation and a finding that a juvenile violated a condition of probation shall constitute a final judgment.

§ 5271.  Discharge from probation 

(a)  The court placing a juvenile on probation may terminate probation and discharge the juvenile at any time.

(b)  Upon the termination of the period of probation, the juvenile probationer shall be discharged from probation.

§ 5272.  Juvenile justice unit; juvenile justice director 

(a)  A juvenile justice unit is created in the family services division of the department.  The unit shall be headed by a juvenile justice director.

(b)  The juvenile justice director shall have the responsibility and authority to monitor and coordinate all state and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.

(c)  The juvenile justice director shall ensure that the following occur:

(1)  Development of a comprehensive plan for a coordinated and sustained statewide program to reduce the number of juvenile offenders, involving state, regional, and local officials in the areas of health, education, prevention, law enforcement, corrections, teen activities, and community wellness.

(2)  Cooperation among state, regional, and local officials, court personnel, service providers, and law enforcement agencies in the formulation and execution of a coordinated statewide juvenile justice program.

(3)  Cooperation among appropriate departments, including the department and the departments of education, corrections, employment and training, developmental and mental health services, and public safety, and the office of alcohol and drug abuse programs.

(4)  A study of issues relating to juvenile justice and development of recommendations regarding changes in law and rules, as deemed advisable.

(5)  Compilation of data on issues relating to juvenile justice and analysis, study, and organization of such data for use by educators, researchers, policy advocates, administrators, legislators, and the governor.


Subchapter 5.  Youthful Offenders

§ 5281.  Disposition of youthful offenders

(a)  Upon the transfer of a case pursuant to subsection 5203(e) or (f) of this title, the court shall impose sentence.  That sentence shall then be suspended and replaced with a juvenile disposition pursuant to section 5232 of this title.

(b)  Copies of all records relating to the criminal sentence imposed under subsection (a) of this section shall be forwarded to the district court and filed in the defendant’s criminal case file.

(c)  In determining an appropriate disposition, the court shall obtain input from the child’s parents, custodians or guardians, teachers, treatment providers, clergy, and all other persons that the court deems necessary.  Upon the imposition of a criminal sentence, the jurisdiction of the family court shall cease and thereafter shall be assumed by the district court.

(d)  When practicable, the same judge who granted the motion requesting treatment of this child as a youthful offender shall impose sentence and disposition under this section.

(e)(1)  The department and the department of corrections shall have dual responsibility for supervising all persons treated as youthful offenders pursuant to subsections 5203(e) and (f) of this title.

(2)  When a case is transferred for youthful offender adjudication, the department and the department of corrections shall:

(A)  each open and maintain a file on the offender;

(B)  develop a joint case plan for the offender; and

(C)  coordinate services and share information to ensure compliance with and completion of the juvenile disposition.

(3)  A lead case manager shall be designated who shall have final decision-making authority over the case plan and the provision of services to the offender.  For offenders younger than age 18, the lead case manager shall be designated by the department.  For offenders age 18 and older, the lead case manager shall be designated by the department of corrections.

(4)  The offender shall be eligible for all age-appropriate

community-based programming and services provided by the department and the department of corrections.

§ 5282. Modification or revocation of disposition

If, after a hearing, the court finds that a youthful offender has violated the terms of the disposition order, the court may modify the disposition order, or may impose the criminal sentence.  Upon the imposition of a criminal sentence, the jurisdiction of the family court shall cease and thereafter shall be assumed by the district court.


§ 5283.  Review prior to the age of 18

(a)  The family court shall review the youthful offender’s case before the youthful offender reaches the age of 18 to determine whether the court’s jurisdiction over the youthful offender should be continued past the age of 18.

(b)  After receiving a notice of review under this section, the state may file a motion to modify or revoke pursuant to section 5282 of this title.  If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5282 of this title shall be available to the court.

(c)  If the court finds that it is in the best interest of the youthful offender to continue the case past the age of 18, it shall make an order continuing the court’s jurisdiction up to the age of 22.

(d)  If the court finds that it is not in the best interest of the youthful offender to continue the case past the age of 18, it shall terminate the disposition order and discharge the youthful offender and dismiss the criminal case.

§ 5284.  Termination or continuance of disposition

(a)  If the youthful offender successfully completes the juvenile disposition, the court on motion shall hold a hearing to determine whether the youthful offender has been rehabilitated, and the youthful offender shall bear the burden of so proving by a preponderance of the evidence. Successful completion of the disposition shall create a rebuttable presumption that the youthful offender has been rehabilitated.  If the youthful offender meets this burden, the burden is then on the state to show otherwise by clear and convincing evidence.

(b)  In determining whether a youthful offender has been sufficiently rehabilitated, the court shall base its finding on:

(1)  the youthful offender’s performance during treatment;

(2)  reports of treatment personnel; and

(3)  any other relevant facts associated with the youthful offender’s behavior.

(c)  If the court finds that the youthful offender has successfully completed the terms of the juvenile disposition order and has been rehabilitated, it shall terminate the disposition order, discharge the youthful offender, and dismiss the criminal case.

(d)  Upon discharge and dismissal under subsection (c) of this section, the records of the criminal case and juvenile proceeding shall be sealed.

(e)  If the court finds that the youthful offender has not successfully completed the terms of the disposition or has not been sufficiently rehabilitated, it may deny the motion, extend the disposition, or impose the criminal sentence.


§ 5285.  Rights of victims in youthful offender

              proceedings

(a)  The victim in a proceeding involving a youthful offender shall have the following rights:

(1)  To be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled.

(2)  To be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youthful offender.

(3)  To request notification by the agency having custody of the youthful offender before the youthful offender is released from a residential facility.

(4)  To be notified by the prosecutor as to the final disposition of the case.

(5)  To be notified by the prosecutor of the victim’s rights under this section.

(b)  In accordance with court rules, at the disposition hearing of a youthful offender, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition.  In ordering disposition, the court shall consider any views offered at the hearing by the victim.  If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

(c)  No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.

(d)  For purposes of this section “victim” shall have the same meaning as in subdivision 5301(4) of Title 13.

Subchapter 6.  Placement of Minors in Secure Facilities

§ 5291.  Detention of Minors Charged as Delinquents in a

              Secure Facility for the Detention of Delinquent

              Children

(a)  Unless ordered otherwise at or after a temporary care hearing, the commissioner shall have sole authority to place the child who is in the custody of the department in a secure facility for the detention of minors.

(b)  Upon a finding at the temporary care 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 in 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.

§ 5292.  Detention of Minors Charged or Adjudicated as

              Delinquents in Adult Facilities

(a)  A minor charged with a delinquent act shall not be detained under this chapter 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 life imprisonment and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(b)  A minor who has been adjudicated as a delinquent child shall not by virtue of such adjudication be committed or transferred to an institution or other facility used primarily for the execution of sentences of persons convicted of a crime.

(c)  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 (a) of this section or section 5293 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.


§ 5293.  Disposition of minors adjudicated as adult

              offenders; separation of persons under 18 years

              from adults

(a)  Pretrial detention.

(1)  A minor who is under the age of 18 who has been arrested shall not be placed in a facility for adult offenders unless a felony charge has been filed in district court or the district court has exercised jurisdiction over the matter and the state’s attorney has determined that a felony charge will be filed without delay. A minor who is eligible for release under chapter 229 of Title 13 shall be released.

(2)(A)  A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere:

(i)  be released to his or her parents, guardian, or custodian; or

(ii)  be delivered to the district court.

(B)  If the minor is delivered to the district court, the arresting officer shall immediately file written notice thereof with the court together with a statement of the reason for taking the minor into custody. A minor who is eligible for release under chapter 229 of Title 13 shall be released. In the event that the minor is not released:

(i)  the minor shall not be detained in a facility for adult offenders; and

(ii)  The court shall defer to the commissioner of corrections concerning the facility in which the minor shall be detained.

(b)  Sentencing of minor.  If a minor is convicted of an offense in a court of criminal jurisdiction as an adult, the court shall sentence the minor as an adult.

(c)  Placement of minors under 16.  The commissioner of corrections shall not place a minor under the age of 16 who has been sentenced to a term of imprisonment in a correctional facility used to house adult offenders.

(d)  Placement of minors over 16 convicted of felony.  The commissioner of corrections may place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a felony and who has been sentenced to a term of imprisonment.

(e)  Placement of minor over 16 convicted of misdemeanor.  The commissioner of corrections shall not place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a misdemeanor

(f)  Transfer of minor at 18th birthday.  At the 18th birthday of a minor convicted of a misdemeanor, the commissioner may transfer the minor to a facility for adult offenders.

(g)  Applicability.  The provisions of this section shall apply to the commitment of minors to institutions within or outside the state of Vermont.


Sec. 3.  33 V.S.A. chapter 53 is added to read:

Chapter 53.  Children in Need of

Care or Supervision

§ 5301.  Taking into custody 

A child may be taken into custody:

(1)  Pursuant to an order of the family court under the provisions of this chapter.

(2)  By an officer when the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal is necessary for the child’s protection.

(3)  By an officer when the officer has reasonable grounds to believe that the child has run away from a custodial parent, a foster parent, a guardian, a legal custodian, a noncustodial parent lawfully exercising parent-child contact, or another person having legal or physical responsibility for the child.

§ 5302.  Request for Emergency Care Order  

(a)  If an officer takes a child into custody pursuant to subdivisions 5301(1) and (2) of this title, the officer shall immediately notify the child’s parent, guardian, or custodian and release the child to the care of the child’s parent, guardian, or custodian unless the officer determines that the child’s immediate welfare requires the child’s continued absence from the home.

(b)  If the officer determines that the child’s immediate welfare requires the child’s continued absence from the home, the officer shall:

(1)  Remove the child from the child’s surroundings, contact the department, and deliver the child to a location designated by the department.  The department shall have the authority to make reasonable decisions concerning the child’s immediate placement, safety and welfare pending the issuance of an emergency care order.

(2)  Prepare an affidavit in support of a request for an emergency care order and provide the affidavit to the state’s attorney.  The affidavit shall include:  the reasons for taking the child into custody; placements with which the child is familiar; the names, addresses, and telephone number of the child’s parents, guardians or custodians; the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child.  If the department has knowledge of the reasons for the removal of the child, the department may prepare an affidavit in lieu of or as a supplement to the affidavit of the law enforcement officer.

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s parent, guardian or custodian.  If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the court on the next day that the court is open.

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5303.  Procedure for runaway children  

(a)  If an officer takes a child into custody pursuant to subdivision 5301(3) of this title, the officer shall deliver the child to:  

(1)  the child’s custodial parent, foster parent, guardian, legal custodian, noncustodial parent lawfully exercising parent-child contact, or person having legal or physical responsibility for the child; or

(2)  a shelter designated by the department  pursuant to section 5304 of this title as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian, or legal custodian.

(b)  Upon delivery of a child to a shelter, the shelter program director or his or her designee, shall notify the child’s parents, guardian, or custodian that the child has been taken into custody and make reasonable efforts to mediate the differences between the parties.

(c)  A child may remain at a designated shelter for a period not to exceed seven days.

(d)  Upon expiration of the seven-day period or sooner at the request of the child or the parents:

(1)  the child shall be released to his or her parents, guardian, or custodian; or

(2)  an officer shall seek an emergency care order pursuant to section 5302 of this title.

(e)  During the period of time the child is at the shelter, the legal custody of the child shall remain with the parent unless otherwise designated by the juvenile court.

§ 5304.  Designated shelters for runaway children  

The commissioner shall designate shelters throughout the state where a child taken into custody pursuant to subdivision 5301(3) of this title may be housed for a period not to exceed seven days.


§ 5305.  Emergency Care Order; CONDITIONAL CUSTODY

              ORDER

(a)  Transfer of temporary custody.  If the court determines that the child’s continued residence in the home is contrary to the child’s welfare, the court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing.  The determination may be made without hearing or notice to the custodial parent, guardian, or custodian provided that it is reasonably supported by the affidavit prepared in accordance with section 5302 of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain: 

(1)  a written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding;

(2)  the date, hour, and place of the temporary care hearing to be held pursuant to section 5307 of this title; and

(3)  notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian subject to such conditions and limitations necessary and sufficient to protect the child pending a temporary care hearing, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  An emergency conditional custody order shall contain the date, hour, and place of the temporary care hearing and notice of a parent’s right to counsel at the hearing.

§ 5306.  Notice of Emergency Care Order and TEMPORARY

              CARE Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify them or cause them to be notified of the order, the date, the time and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parents.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with notice of the date, hour, and place of the temporary care hearing and right to counsel.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  A representative of the department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent the custodial parent in the event the parent requests and is eligible for a court-appointed lawyer. 

§ 5307.  Temporary Care Hearing

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5305 of this title.  State holidays shall be excluded from the computation of 72 hours.   If the custodial parent, guardian, or custodian has not been notified in accordance with section 5306 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, he or she shall file a petition in accordance with section 5308 of this title prior to the temporary care hearing.  If the state’s attorney elects not to file a petition, he or she shall so notify the court and the court shall vacate the emergency care order and return custody of the child to the custodial parent, guardian, or custodian.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child, unless the presence of the child is waived by the child’s attorney.

(2)  The child’s custodial parent, guardian, or custodian, unless the parent, guardian, or custodian cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  The department.

(7)  The state’s attorney.

(d)  A noncustodial parent shall have the right to be present at the hearing; however, the hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent.

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to subsection 5302(b) of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custody of the parent or guardian.

(5)  The identity of a noncustodial parent and any relatives known to the department who may be appropriate, capable, willing, and available to assume temporary custody of the child.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. Section 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may, in its discretion, limit testimony and evidence to only that which goes to the issues of removal of the child from the home and the child’s welfare.

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5308.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return home would be contrary to the child’s welfare because any one of the following exists:

(1)  A return of custody could result in substantial danger to the physical health, mental health, or safety of the child.

(2)  The child or another child residing in the same household has been physically or sexually abused or is considered to be at substantial risk of physical or sexual abuse by a parent, a member of the parent’s household, or another person known to the parent.  If a parent has received actual notice that physical or sexual abuse by a person known to the parent has occurred and there is evidence that the parent has knowingly or recklessly allowed the child to be in the physical presence of the alleged abuser after receiving such notice, that fact constitutes prima facie evidence that a child is at substantial risk of being physically or sexually abused.

(3)  The parent has abandoned the child.  A parent is considered to have abandoned a child under any of the following circumstances:

(A)  The parent is unwilling to have physical custody of the child.

(B)  The parent is unable, is unwilling, or has failed to make appropriate arrangements for the child’s support, care, or education.

(C)  The parent is unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child.

(D)  A relative or other adult custodian with whom the child has been left by the parent is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.

(4)  The child is in immediate need of medical care and the parent is unable or unwilling to provide medical care.

(5)  The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.

(6)  The child’s welfare is endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including:

(1)  A conditional custody order returning custody of the child to the parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.

(2)  An order transferring temporary custody of the child to a noncustodial parent or a relative who is appropriate, capable, willing, and available to care for the child.

(3)  A temporary care order transferring temporary custody of the minor child to the commissioner. 

(c)  If the court transfers custody of the child to the commissioner, the court shall issue a written temporary care order. 

(1)  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(2)  The order may include other provisions as may be necessary for the protection and welfare of the child, such as:

(A)  Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.

(B)  Requiring the department to provide the child with services.

(C)  Requiring the department to refer a parent to services.

(D)  Requiring genetic testing if parentage of the child is at issue.

(E)  Requiring the department to make diligent efforts to locate the noncustodial parent.

(F)  Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.

§ 5309.  Filing of a petition 

(a)  The state’s attorney having jurisdiction shall prepare and file a petition alleging that a child is in need of care or supervision upon the request of the commissioner or, in the event the child is truant from school, upon the request of the superintendent of the school district in which the child is enrolled or resides.  If the state’s attorney fails to file a petition within a reasonable amount of time, the department or the superintendent of the school district may request that the attorney general file a petition on behalf of the department.

(b)  If the court has issued an emergency care order placing the child who is the subject of the petition in the temporary custody of the department or has issued a conditional custody order, the state’s attorney shall file the petition on or before the date of the temporary care hearing.  

(c)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

(d)  The agency of human services may file a petition pursuant to subsection (a) of this section alleging that a 16- to 17.5-year-old youth who is not in the custody of the state is a child in need of care or supervision under subdivision 5102(1)(B)(ii) of this title when the child meets the criteria set forth in subdivision 5102(1)(B)(ii) of this title.  The petition shall be accompanied by a report from the department which sets forth facts supporting the specific requirements of subdivision 5102(2)(C) of this title and that it is in the best interests of the child to be considered as a child in need of care or supervision.

§ 5310.  Petition, contents 

(a)  The petition shall be supported by an affidavit of an officer or the department. 

(b)  The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child is a child in need of care or supervision together with a statement that it is in the best interests of the child that the proceedings be brought. 

(2)  The name, date of birth, telephone number, and residence address, if known, of the minor child, the custodial and noncustodial parents, the guardian or custodian of the child if other than parent.  If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(3)  Jurisdictional information required pursuant to the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

§ 5311.  Service of Summons and Petition; no request for

              temporary care Order

(a)  When the state’s attorney files a petition but does not request a temporary care order, the court shall set a date for a preliminary hearing on the petition no later than 15 days from the date the petition is filed and issue a judicial summons addressed to the custodial parent, the guardian, the legal custodian, or the relative with whom the child resides.  A copy of the petition shall be attached to the summons. 

(b)  The summons shall contain:

(1)  The name and address of the person to whom the notice is directed.

(2)  The date, time, and place for the preliminary hearing on the petition.

(3)  The name of the minor on whose behalf the petition has been brought.

(4)  A statement that the minor child and the custodial parent or guardian to whom notice is given are entitled to have an attorney present at the hearing on the merits of the petition and that if the parent or guardian is indigent and cannot afford an attorney and desires to be represented, an attorney will be appointed.

(5)  A statement that the parent or legal guardian is liable for the cost of the support of a minor who is placed in the custody of the department.

(6)  An order directing the parent, guardian, custodian, or relative with whom the child resides to appear at the hearing with the child.

(c)  The summons and petition may be served by mailing a copy by certified mail return receipt requested to the child and to the child’s parent, guardian, custodian, or relative with whom the child resides.  Service of the summons and petition may also be made by any sheriff, deputy, or constable.  The court shall provide a copy of the summons to the state’s attorney and a copy of the summons and petition to the department and the attorney for the child.  The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.

(d)  Notice and a copy of the petition shall be served on all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the dates set for the preliminary hearing.

(e)  A party may waive service of the petition and notice by written stipulation or by voluntary appearance at the hearing.

(f)  Once a parent has been served, the court shall provide notice of hearing either directly or by mail.  The parent shall be responsible for providing the court with information regarding any changes in address. 


§ 5312.  Failure to Appear at Preliminary Hearing    

(a)  If a parent has been served by certified mail with the petition and notice of hearing and fails to appear at the preliminary hearing, the court may order that the parent be served with a judicial summons ordering the parent to appear in court with the child at a specified date and time.

(b)  If, after being summoned to appear, the parent fails to appear or fails to bring the child to court as ordered, the court may issue a pick-up order or warrant pursuant to section 5108 of this title. 

§ 5313.  Timelines for pretrial and merits hearing

(a)  Pretrial hearing.  At the time of the temporary care hearing or at the preliminary hearing on the petition if there is no request for temporary custody, the court shall set a pretrial hearing on the petition.  The hearing shall be held within 15 days of the temporary care hearing or the preliminary hearing.  In the event that there is no admission or dismissal at or before the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  If the minor child who is the subject of the petition has been removed from the custody of the custodial parent, guardian, or custodian pursuant to a temporary care order, a merits hearing shall be held and merits adjudicated no later than 60 days from the date the temporary care order is issued.  In all other cases, merits shall be adjudicated in a timely manner in the best interests of the child.

§ 5314.  Filing of Initial Case Plan 

(a)  If a temporary care order is issued transferring custody of the child to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of removal of a child from home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

§ 5315.  Merits Adjudication 

(a)  At a hearing on the merits of a petition, the state shall have the burden of establishing by a preponderance of the evidence that the child is in need of care and supervision. In its discretion, the court may make findings by clear and convincing evidence.

(b)  The parties may stipulate to the merits of the petition.  Such stipulation shall include a stipulation as to the facts that support a finding that the child is in need of care and supervision.

(c)  If the merits are contested, all parties shall have the right to present evidence on their own behalf and to examine witnesses.

(d)  A merits hearing shall be conducted in accordance with the rules of evidence.  A finding of fact made after a contested temporary care hearing based on nonhearsay evidence may be adopted by the court as a finding of fact at a contested merits hearing provided that a witness who testified at the temporary care hearing may be recalled by any party at a contested merits hearing to supplement his or her testimony.  

(e)  If the merits are contested, the court after hearing the evidence shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established, the court shall dismiss the petition and vacate any orders transferring custody to the state or other person or any conditional custody orders.

(g)  If the court finds that the allegations made in the petition have been established based on the stipulation of the parties or on the evidence if the merits are contested, the court shall order the department to prepare a disposition case plan within 28 days of the merits hearing and shall set the matter for a disposition hearing.

(h)  The court in its discretion and with the agreement of the parties may waive the preparation of a disposition case plan and proceed directly to disposition based on the initial case plan filed with the court pursuant to section 5314 of this title.      

§ 5316.   Disposition Case Plan

(a)  The department shall file a disposition case plan ordered pursuant to subsection 5315(g) of this title no later than 28 days from the date of the finding by the court that a child is in need of care or supervision.  The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

(b)  A disposition case plan shall include, as appropriate:

(1)  A permanency goal.  The long-term goal for a child found to be in need of care and supervision is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

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

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the family’s strengths and risk factors.

(5)  A statement of family changes needed to correct the problems necessitating state intervention, with timetables for accomplishing the changes.

(6)  A recommendation with respect to custody for the minor child and a recommendation for parent-child contact if appropriate.

(7)  A plan of services that shall describe the responsibilities of the child, the parents, the department, other family members, and treatment providers including a description of the services required to achieve the permanency goal.

(8)  A request for child support.

§ 5317.  Disposition Hearing 

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is in need of care and supervision.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.  If reports are admitted, the parties shall be afforded an opportunity to examine those making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of termination shall be clear and convincing evidence.  On all other issues, the standard of proof shall be a preponderance of the evidence.

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order at disposition terminating the parental rights of one or both parents and transfer of custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or on the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from home.

§ 5318.  Disposition Order

(a)  Custody.  At disposition, the court shall make such orders related to custody for a child who has been found to be in need of care and supervision as the court determines are in the best interest of the child, including:

(1)  An order continuing or returning custody to the custodial parent, guardian, or custodian.  For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety or welfare of the child.  Conditions may include protective supervision for up to one year following the disposition order unless further extended by court order.    The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(2)  When the goal is reunification with a parent, an order transferring temporary custody to a noncustodial parent, a relative, or a person with a significant relationship with the child.  The order may provide for parent child contact.   For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety or welfare of the child.   Conditions may include protective supervision for up to one year following the disposition order unless further extended by court order.  The court shall schedule regular review hearings to evaluate progress toward reunification and determine whether the conditions and continuing jurisdiction of the juvenile court are necessary.

(3)  An order transferring custody and legal and physical parental rights and responsibilities to a noncustodial parent and terminating the jurisdiction of the juvenile court.  The order may provide for parent-child contact with the other parent.  Any orders transferring parental rights and responsibilities to a noncustodial parent issued under this section shall not be confidential and shall be made a part of the record in any existing parentage or divorce proceeding involving the minor child.  On the motion of a party or on the court’s own motion, the court may order that a sealed copy of the disposition case plan be made part of the record in a divorce or parentage proceeding involving the minor child.

(4)  An order transferring legal custody, guardianship, or both to the commissioner.  

(5)  An order terminating all rights and responsibilities of a parent and transferring custody, guardianship, and all residual parental rights to the commissioner without limitation as to adoption.

(6)  An order of permanent guardianship pursuant to 14 V.S.A. § 2664.

(7)  An order transferring custody, guardianship, or both to a relative or another person with a significant relationship with the minor child.  The order may be subject to conditions and limitations and may provide for parent-child contact with one or both parents.  The order shall be subject to periodic review as determined by the court.

(b)  Case plan.  If the court orders the transfer of custody pursuant to subdivision (a)(2), (4), or (5) of this section, the court shall establish a permanency goal for the minor child and adopt a case plan prepared by the department which is designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

(c)  In the event that custody of a 16- to 17.5-year old is transferred to the department pursuant to a petition filed under subsection 5309(d) of this title services to the child and to his or her family shall be provided through a coordinated effort by the agency of human services, the department of education, and community-based interagency teams. 

(d)  Modification.  A disposition order is a final order which may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5532 of this chapter. 

(e)  Findings.  Whenever the court orders the transfer of custody and guardianship to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume custody of the child and the safety and appropriateness of the placement.    

§ 5319.  Parent-Child Contact and Contact with Siblings

               and Relatives

(a)  If the court orders that a child be placed out of the home, the court shall order parent-child contact unless the court finds that it is necessary to deny parent-child contact because the protection of the physical safety or emotional well-being of the child so requires.

(b)  The court may determine the reasonable frequency and duration of parent-child contact and may set such conditions for parent-child contact as are in the child’s best interests including whether parent-child contact should be unsupervised or supervised.

(c)  Parent-child contact may be modified by stipulation of the parties or upon motion of a party or upon the court’s own motion pursuant to section 5113 of this title. 

(d)  The court may terminate a parent-child contact order upon a finding that:

(1)  a parent has without good cause failed to maintain a regular schedule of contact with the child and that the parent’s failure to exercise regular contact has had a detrimental impact on the emotional well-being of the child; or

(2)  continued parent-child contact in accordance with the terms of the prior order will have a detrimental impact on the physical or emotional

well-being of the child.

(e)  Upon motion of the child’s attorney, the court may also order contact between the child and the child’s siblings, an adult relative with whom the child has a significant relationship, or an adult friend with whom the child has a significant relationship.

(f)  Failure to provide parent-child contact due to the child’s illness or other good cause shall not constitute grounds for a contempt or enforcement proceeding against the department.


§ 5320.  Post-Disposition Review Hearing

If the court transfers custody or guardianship of the child to the department pursuant to subdivision 5318(a)(4) of this title or to a noncustodial parent, a relative, or a person with a significant relationship to the child pursuant to subdivision 5318(a)(2) of this title, the court shall hold a review hearing within 60 days of the date of the disposition order for the purpose of monitoring progress under the disposition case plan and reviewing parent-child contact.  Notice of the review shall be provided to all parties.  A foster parent, preadoptive parent, or relative caregiver shall be provided with notice of any post disposition review hearings and an opportunity to be heard at the hearings.

§ 5321.  Permanency hearing 

(a)  Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody, guardianship, or residual parental rights and responsibilities of a child to the department pursuant to subdivision 5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be subject to periodic review at a permanency hearing.   At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal.  The goal shall specify when:

(1)  the child will be returned to the parents;

(2)  the child will be released for adoption;

(3)  a permanent guardianship will be established for the child;

(4)  a legal guardianship will be established for the child; or

(5)  the child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child’s best interests to:

(A)  return home;

(B)  have residual parental rights terminated and be released for adoption; or

(C)  be placed with a fit and willing relative or legal guardian.

(b)  The court shall adopt a case plan designed to achieve the permanency goal. 

(c)  A permanency review hearing shall be held every 12 months with the first hearing to be held 12 months after the date the custody of the child was transferred, subject to the following exceptions:

(1)  If the child was three years of age or younger at the time of the initial transfer of custody, the court may order that permanency review hearings be held as frequently as every three months.

(2)  If the child is between the ages of three and six at the time of the initial transfer of custody, the court may order that permanency review hearings be held as frequently as every six months.

(d)  If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the custody of the department.  

(e)(1)  The department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal.  The department shall provide notice to the state’s attorney having jurisdiction and to all parties to the proceeding in accordance with the rules for family proceedings.  The court shall hold a permanency review hearing within 30 days of the filing of notice by the department.  Failure to give such notice or to review an order shall not terminate the original order or limit the court’s jurisdiction.

(2)  A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child.  Nothing in this subsection shall be construed as affording such person party status in the proceeding.

(f)  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value even though not competent at an adjudication hearing. 

(g)  The permanency hearing may be held by an administrative body appointed or approved by the court.  The administrative body may consist of one but not more than three persons.  No person employed by the department shall be a member of the administrative body.  In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the juvenile court for its consideration.  In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within ten days of receipt of the determination.  A copy of the determination shall be sent to each party and to the juvenile court.  The court, on its own motion or on the request of any party, shall conduct a review de novo within 30 days of receipt of such request.

(h)  Upon the filing of a petition for a finding of reasonable efforts and a report or affidavit by the department for children and families with notice to all parties, the court shall hold a hearing within 30 days of the filing of the petition to determine, by a preponderance of the evidence, whether the department for children and families has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing.  The hearing may be consolidated with or separate from a permanency hearing.  Reasonable efforts to finalize a permanency plan may consist of:

(1)  reasonable efforts to reunify the child and family following the child’s removal from the home, where the permanency plan for the child is reunification; or

(2)  reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child, in cases where the permanency plan for the child does not include reunification.

§ 5322.  Placement of a Child in a Facility Used for

              Treatment of Delinquent Children

A child found by the court to be a child in need of care and supervision shall not be placed in or transferred to an institution used solely for the treatment or rehabilitation of delinquent children unless the child has been charged with or adjudicated as having committed a delinquent act.

Sec. 4.  REPEAL

The following are repealed:

(1)  33 V.S.A. chapter 55 (judicial proceedings).

(2)  13 V.S.A. § 5320 (notification of conditions of release to victim in delinquency proceedings).



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us