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House Calendar

TUESDAY, MARCH 11, 2008

64th DAY OF ADJOURNED SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Action Postponed Until Wednesday, March 12, 2008

Pending Action: Third Reading of the bill

H. 112  Protection of Health Care for Public Safety Personnel ....................... 731

NOTICE CALENDAR

Favorable with Amendment

H. 615  Relating to Juvenile Judicial Proceedings............................................ 731

          Rep. Flory for Judiciary

H. 617  Relating to Guardianships.................................................................. 770

          Rep. Jewett for Judiciary

H. 641  Relating to Nursing Mothers in the Workplace................................... 790

               Rep. McCormack for General, Housing and Military Affairs

H. 863  Affordable Housing and Smart Growth Development......................... 791

          Rep. Head for General, Housing and Military  Affairs

          Rep. Klein for Natural Resources and Energy........................................ 791

          Rep. Peterson for Ways and Means...................................................... 802

J.R.H. 54  Urging Congress to Eliminate Loopholes in Markets...................... 804

          Rep. Krawczyk for Natural Resources and Energy

Senate Proposal of Amendment

J.R.H. 51  Reusable Shopping Bag Campaign............................................... 804

 

 

 

ORDERS OF THE DAY

ACTION CALENDAR

Action Postponed Until Wednesday, March 12, 2008

H. 112

     An act relating to protection of health care and public safety personnel from communicable disease.

Pending Action: Third Reading of the bill

(For House amendments to bill see House Journal of 2/28/08 Pages 428-431)

NOTICE CALENDAR

Favorable with Amendment

H. 615

     An act relating to juvenile judicial proceedings.

Rep. Flory of Pittsford, for the Committee on Judiciary, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

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)  “Care provider” means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.

(2)  “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 (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, 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 (3)(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 (3)(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 the 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 court retains jurisdiction under section 5104 of this title.   

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

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

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

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

(5)  “Conditional custody order” means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child.

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

(7)  “Custodial  parent” means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child.  The rights of the custodial parent may be held solely or shared and may be subject to the

court-ordered right of the other parent to have contact with the child.

(8)  “Custodian” means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont family or probate court or a similar court in another jurisdiction.

(9)  “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.        

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

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

(12)  “Guardian” means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont probate court or a similar court in another jurisdiction.

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

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

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

(16)(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 routine daily care and control 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. 

(iv)  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)  If legal custody is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.

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

(18)  “Noncustodial parent” means a parent who is not a custodial parent at the time of the commencement of  the juvenile proceeding.

(19)  “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.

(20)  “Parent” means a child’s biological or adoptive parent, including custodial parents, noncustodial parents, parents with legal or physical responsibilities or both and parents whose rights have never been adjudicated.

(21)  “Parent-child contact” means the right of a parent to have visitation with the child by court order.

(22)  “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.

(23)  “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.

(24)  “Protective supervision” means the authority granted by the court to the department in a juvenile proceeding to take reasonable steps to monitor compliance with the court’s conditional custody order, including unannounced visits to the home in which the child currently resides.

(25)  “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 to 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.

(26)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.

(27)  “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.

(28)  “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 legal custody of the commissioner.

(2)  Upon an order of the court transferring legal custody to a parent, guardian, or custodian 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 19.

(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 a parent, guardian, or custodian 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 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 legal custody by order of the court.

(4)  To place a child who is in the commissioner’s  legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution 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, guardian, or custodian to appear at any hearing or to appear at the hearing 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 custodian, the court may issue a warrant for the person 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 to the court, the court may issue a warrant for the parent, guardian, or 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, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.  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 legal 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.

(b)  If a child is placed in the legal custody of the department, the department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the court of the noncustodial parent’s address.  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 

(a)  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 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 parent will be able to resume or assume parental duties within a reasonable period of time.

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

(b)  Except in cases where 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 also consider whether the parent is capable of playing a constructive role, including demonstrating 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 no more than 10 days after 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.

(e)  A person who is the subject of an order issued pursuant to this section who violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030.

§ 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 33 shall be borne by the 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 legal custody of the commissioner and placed with someone other than the parent or parents responsible for support.

(f)  Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.

(g)  Notwithstanding subsection 5103(b) of this title, an order terminating a parent’s residual parental rights ends that parent’s obligation to pay child support.  However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order.

§ 5117.  records OF JUVENILE JUDICIAL PROCEEDINGS  

(a)  Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the 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 court having the child before it in any juvenile judicial 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, guardian, custodian, and guardian ad litem 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)  Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding.  The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding.

(d)  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.

(e)  Any records or reports relating to a matter within the jurisdiction of the 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.

(f)  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, guardian, or custodian, 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 legal 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 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 custodian, a noncustodial parent lawfully exercising parent-child contact, or care provider.

§ 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 custodial parent, guardian, or custodian and release the child to the care of the child’s custodial 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; and to the degree known, placements with which the child is familiar; the names, addresses, and telephone number of the child’s parents, guardian, custodian, or care provider; the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child.  The department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer if the department has additional information with respect to the child or the family.

(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 custodial 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 custodial 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, custodian, or noncustodial parent lawfully exercising parent-child contact; 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 custodial parent:

(1)  the child shall be released to his or her custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising

parent-child contact; or

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

(e)  Unless otherwise ordered by the court, the custody status of the child shall remain the same during the period of time the child is at the shelter.

§ 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 ex parte, 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 the custodial parent 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 the emergency care order or conditional care order, notice of the date, hour, and place of the temporary care hearing, and right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(c)  Failure to locate.  The hearing shall not be delayed by reason of not being able to locate either the custodial or noncustodial parent.

(d)  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 each parent.  The attorney may be

court-appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent. 

§ 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 order the return 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 and his or her attorney 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 custodial parent, guardian, or custodian.

(5)  The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(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 temporary legal custody.

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

§ 5308.  Temporary Care Order

(a)  The court shall order that legal custody be returned to the child’s custodial 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 legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(2)  The child or another child residing in the same household has been physically or sexually abused by a parent, guardian, or custodian, or by a member of the child’s household, or another person known to the parent, guardian, or custodian.

(3)  The child or another child residing in the same household is at substantial risk of physical or sexual abuse by a parent, guardian, or custodian, or by a member of the child’s household, or another person known to the parent, guardian, or custodian.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(A)  a parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(B)  the parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(4)  The custodial parent, guardian, or guardian has abandoned the child.  A person is considered to have abandoned a child under any of the following circumstances:

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

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

(C)  The person 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)  The person has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.

(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.

(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 legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including, in order of preference:

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

(2)(A)  Upon a personal appearance and a request by a noncustodial parent for temporary legal custody and upon a determination that parentage is not contested, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent’s contact with the child, including any reasons why contact did not occur, and that addresses:

(i)  the child’s need for a safe, secure, and stable home;

(ii)  the child’s need for proper and effective care and control; and

(iii)  the child’s need for a continuing relationship with the custodial parent, if appropriate.

(B)  The court shall consider court orders and findings from other proceedings related to the custody of the child.

(C)  The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child’s welfare because any of the following exists:

(i)  The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.

(ii)  Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(iii)  The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.

(iv)  The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(I)  a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(II)  the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(v)  The child or another child in the noncustodial parent’s household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.

(D)  If temporary custody by the noncustodial parent is contested, the court may continue the hearing and place the child in the temporary custody of the department pending further hearing and resolution of the custody issue.  Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.

(3)  An order transferring temporary legal custody of the child to a relative, provided:

(A)  The relative seeking legal custody is a grandparent,

great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.

(B)  The relative is suitable to care for the child.  In determining suitability, the court shall consider the relationship of the child and the relative and the relative’s ability to:

(i)  Provide a safe, secure, and stable environment.

(ii)  Exercise proper and effective care and control of the child.

(iii)  Protect the child from the custodial parent to the degree the court deems such protection necessary.

(iv)  Support reunification efforts, if any, with the custodial parent.

(v)  Consider providing legal permanence if reunification fails.

(C)  In considering the suitability of a relative who is entitled to preferential consideration, the court may order the department to conduct an investigation and file a written report of its findings with the court.  The court may place the child in the temporary custody of the department pending such investigation.

(4)  A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met.  The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.

(5)  A temporary care order transferring temporary legal custody of the child to the commissioner. 

(c)  If the court transfers legal 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.

(d)  If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner.

§ 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 legal 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)  Upon the request of the agency of human services, the state’s attorney 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 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, guardian, custodian, or care provider.  A copy of the petition shall be attached to the summons.  The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.

(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)  Notice of a parent’s right to counsel.

(5)  A statement that the parent, guardian or custodian may be liable for the cost of the support of a child if the child is placed in the legal custody of the department.

(6)  An order directing the parent, guardian, custodian, or care provider 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 care provider.  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. 

(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 date 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, guardian, or custodian 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, guardian, or custodian 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, guardian, or custodian be served with a judicial summons ordering the person to appear in court with the child at a specified date and time.

(b)  If, after being summoned to appear, the parent, guardian, or custodian 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 legal 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 child who is the subject of the petition has been removed from the legal 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 legal 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 Vermont 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 temporary orders in connecting with this proceeding.

(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. 

(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 custodial parent, guardian, or custodian; 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 legal custody for the 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, guardian, or custodian, 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 legal 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 legal 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 legal custody to the custodial parent, guardian, or custodian.  For a fixed period of time following disposition, the court may issue a conditional custody order for a fixed period of time.   The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(2)  When the goal is reunification with a custodial parent, guardian, or custodian 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 issue a conditional custody order for a fixed period of time.   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 legal custody to a noncustodial parent and terminating the juvenile proceeding.  The order may provide for parent-child contact with the other parent.  Any orders transferring legal custody 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 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 child.

(4)  An order transferring legal custody to the commissioner.  

(5)  An order terminating all rights and responsibilities of a parent by transferring legal custody 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 legal custody to a relative or another person with a significant relationship with the 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)  Sixteen- to 17.5-year olds.  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 5113 of this title. 

(e)  Findings.  Whenever the court orders the transfer of legal custody 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 legal custody of the child and the safety and appropriateness of the placement.    

§ 5319.  Parent-Child Contact and Contact with Siblings

       and Relatives

(a)  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.  Except for good cause shown, the order shall be consistent with any existing parent-child contact order.

(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 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 in a juvenile proceeding 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 permanency goal of the disposition case plan is reunification with a parent, guardian, or custodian, 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.  Nothing in this section shall be construed as affording such person party status in the proceeding.

§ 5321.  Permanency hearing 

(a)  Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody 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)  legal custody of the child will be transferred to the parent, guardian, or custodian;

(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 pursuant to an order under chapter 111 of Title 14; 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 no less than every 12 months with the first hearing to be held 12 months after the date the legal 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 legal 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 legal 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 legal 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 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 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. 3.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER

       AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, a protective order that concerns contact with a child and is issued under chapter 51 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

* * *

(e)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

* * *

Sec. 4.  Section 6(b) of the Rules of Public Access to Court Records is amended to read:

(b)  Exceptions.  The public shall not have access to the following judicial branch records:

* * *

(34)  Records from a juvenile proceeding that are filed with the court or admitted into evidence in a divorce or parentage proceeding.

(35)  Any other record to which public access is prohibited by statute.

  Sec. 5.  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).

Sec. 6.  EFFECTIVE DATE

This act shall take effect January 1, 2009.

(Committee vote: 10-0-1)

H. 617

     An act relating to guardianships.

Rep. Jewett of Ripton, for the Committee on Judiciary, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  14 V.S.A. chapter 111 is amended to read:

Chapter 111.  Guardians and Ward Guardianship

* * *

Subchapter 12.  Total and Limited Guardianship for Mentally Disabled Adults Persons in Need of Guardianship

§ 3060.  POLICY

Guardianship for mentally disabled persons shall be utilized only as necessary to promote the well‑being of the individual and to protect the individual from violations of his or her human and civil rights.  It shall be designed to encourage the development and maintenance of maximum self‑reliance and independence in the individual and only the least restrictive form of guardianship shall be ordered only to the extent required by the individual’s actual mental and adaptive limitations.

§ 3061.  DEFINITIONS

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

(1)  “Mentally disabled person” “Person in need of guardianship” means a person who has been found to be:

(A)  is at least 18 years of age; and

(B)  mentally ill or developmentally disabled; and

(C)  is unable to manage, without the supervision of a guardian, some or all aspects of his or her personal care or financial affairs as a result of:

(i)  significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior; or

(ii)  a physical or mental condition that results in significantly impaired cognitive functioning which grossly impairs judgment, behavior, or the capacity to recognize reality.  

(2)  “Unable to manage his or her personal care” means the inability, as evidenced by recent behavior, to meet one’s needs for medical care, nutrition, clothing, shelter, hygiene, or safety so that physical injury, illness, or disease has occurred or is likely to occur in the near future.

(3)  “Unable to manage his or her financial affairs” means gross mismanagement, as evidenced by recent behavior, of one’s income and resources which has led or is likely in the near future to lead to financial vulnerability.

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

(5)  “Mentally ill” means a substantial disorder of thought, mood, perception, orientation, or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but shall not include mental retardation.

(6)(4)  “Near relative” means a parent, stepparent, brother, sister, grandparent, spouse, domestic partner, or adult child.

(7)(5)  “Person interested in the welfare of the ward” “Interested person” means a responsible adult who has a direct interest in a mentally disabled person in need of guardianship and includes but is not limited to, the proposed mentally disabled person in need of guardianship, a near relative, a close friend, a guardian, public official, social worker, physician, agent named in an advance directive or in a power of attorney, person nominated as guardian in an advance directive, or clergyman member of the clergy.

(8)  “Total guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of all the powers listed in section 3069 of this title.

(9)  “Limited guardianship” means the legal status of a mentally disabled person who is subject to a guardian’s exercise of some, but not all of the powers listed in section 3069 of this title.

(10)  “Qualified mental health professional” means:

(A)  for the evaluation of an allegedly developmentally disabled person, a licensed psychologist, physician, certified special educator, or certified clinical social worker, or certified clinical mental health counselor, any of whom must also have specialized training and demonstrated competence in the assessment of developmentally disabled persons;

(B)  for the evaluation of an allegedly mentally ill person, a person with professional training and demonstrated competence in the treatment of mental illness, who shall be a physician, licensed psychologist, certified clinical social worker or certified clinical mental health counselor.

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

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

(13)(8)  “Ward”Person under guardianship” means a person under in need of guardianship for whom a guardianship order has been issued.

(9)  “Do not resuscitate order” shall have the same meaning as in subdivision 9701(7) of Title 18.   

§ 3062.  JURISDICTION; REVIEW OF GUARDIAN’S ACTIONS

(a)  The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

(b)  The probate court shall have supervisory authority over guardians.  Any interested person may seek review of a guardian’s proposed or past actions by filing a motion with the court.

§ 3063.  PETITION FOR TOTAL OR LIMITED GUARDIANSHIP

Any person interested in the welfare of the ward An interested person may file a petition with the probate court for the appointment of a total or a limited guardian.  The petition shall state:

(1)  the names and addresses of the petitioner and the respondent, and,; if known, the name and address of a near relative of the respondent; the name and address of the person nominated as guardian in an advance directive; and the name and address of the current guardian, and agent named in an advance directive or in a power of attorney;

(2)  the interest of the petitioner in the respondent;

(3)  whether that the respondent is alleged to be mentally ill or developmentally disabled a person in need of guardianship, and whether that the respondent is at least 18 years of age or will become 18 years of age within four months of the filing of a petition;

(4)  specific reasons with supporting facts why guardianship is sought;

(5)  the specific areas where supervision and protection is requested and the powers of the guardian requested for inclusion in the court’s order;

(6)  the nature, description and approximate value of the respondent’s income and resources, including public benefits and pension;

(7)  if a specific individual is proposed as guardian, the name and address of the proposed guardian and the relationship of the proposed guardian to the respondent; and

(8)  alternatives to guardianship that have been considered and an explanation as to why each alternative is unavailable or unsuitable.

§ 3064.  NOTICE OF PETITION AND HEARING

(a)  Upon the filing of the petition, the probate court shall schedule a hearing and notice shall be given as provided by the rules of probate procedure.

(b)  The hearing shall be held not less than 15 nor more than 30 days after the filing with the court of the evaluation required by section 3067 of this title. The hearing may be continued for good cause shown for not more than 15 additional days.

§ 3065.  COUNSEL

(a)(1)  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

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

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

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

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

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

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

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

(3)  proper due process procedure is followed;

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

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

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

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

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

§ 3066.  GUARDIAN AD LITEM

On motion of the respondent’s or ward’s person under guardianship’s counsel or on the court’s own motion the court may appoint a guardian ad litem if it finds the respondent or ward person under guardianship is unable to communicate with or advise counsel.

§ 3067.  EVALUATION AND REPORT; BACKGROUND CHECK; RELEASE OF EVALUATION

(a)  When a petition is filed pursuant to section 3063 of this title, or when a motion for modification or termination is filed pursuant to subdivision 3077(a)(4) of this title, the court shall order an evaluation of the respondent.  Except as otherwise provided in this subsection, the cost of the evaluation shall be paid for out of the respondent’s estate or as ordered by the court.  If the respondent is unable to afford some or all of the cost of the evaluation without expending income or liquid resources necessary for living expenses, the court shall order that the department of mental health or the department of disabilities, aging, and independent living provide the evaluation through community mental health agencies affiliated with the departments qualified evaluators.

(b)  The evaluation shall be performed by a qualified mental health professional someone who has specific training and demonstrated competence to evaluate a person in need of guardianship.  The evaluation shall be completed within 30 days of the filing of the petition with the court unless the time period is extended by the court for cause.

(c)  The evaluation shall:

(1)  describe the nature and degree of the respondent’s disability, if any, and the level of the respondent’s intellectual, developmental, and social functioning;

(2)  contain recommendations, with supporting data, regarding:

(A)  those aspects of his or her personal care and financial affairs which the respondent can manage without supervision or assistance;

(B)  those aspects of his or her personal care and financial affairs which the respondent could manage with the supervision or assistance of support services and benefits;

(C)  those aspects of his or her personal care and financial affairs which the respondent is unable to manage without the supervision of a guardian;

(D)  those powers and duties as set forth in sections 3069 and 3071 of this title which should be given to the guardian, including the specific support services and benefits which should be obtained by the guardian for the respondent.

(d)  The proposed guardian shall provide the court with the information and consents necessary for a complete background check.  Not more than 10 days after receipt of an evaluation supporting guardianship of the respondent, the court shall order from the respective registries background checks of the proposed guardian from any available state registries, including but not limited to the adult abuse registry, child abuse registry, Vermont crime information center, and the Vermont state sex offender registry, and the court shall consider information received from the registries in determining whether the proposed guardian is suitable.  However, if appropriate under the circumstances, the court may waive the background reports or may proceed with appointment of a guardian prior to receiving the background reports, provided that the court may remove a guardian if warranted by background reports which the court receives after the guardian’s appointment.  If the proposed guardian has lived in Vermont for fewer than five years or is a resident of another state, the court may order background checks from the respective state registries of the states in which the proposed guardian lives or has lived in the past five years or from any other source.  The court shall provide copies of background check reports to the petitioner, the respondent, and the respondent’s attorney.

(e)  Regardless of whether the report of the evaluator supports or does not support guardianship, the court shall provide a copy of the evaluation to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.  The evaluation shall remain confidential, and recipients of the evaluation are prohibited from sharing the evaluation.  Notwithstanding the foregoing, the court may restrict access to the evaluation or portions of the evaluation upon objection by one of the parties or on the court’s own motion. 

§ 3068.  HEARING

(a)  The respondent, the petitioner and all other persons to whom notice has been given pursuant to section 3064 of this title may attend the hearing and testify.  The respondent and the petitioner may subpoena, present and cross‑examine witnesses, including those who prepared the evaluation.  The court may exclude any person not necessary for the conduct of the hearing on motion of the respondent.

(b)  The hearing shall be conducted in a manner consistent with orderly procedure and in a setting not likely to have a harmful effect on the mental or physical health of the respondent.

(c)  The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena.  However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record.  In all cases, the court shall make specific findings of fact, state separately its conclusions of law and direct the entry of an appropriate judgment.

(d)  The petitioner may be represented by counsel in any proceedings brought under this chapter.

(e)  If upon completion of the hearing and consideration of the record the court finds that the respondent is not mentally disabled a person in need of guardianship, it shall dismiss the petition and seal the records of the proceeding.

(f)  If upon completion of the hearing and consideration of the record the court finds that the petitioner has proved by clear and convincing evidence that the respondent is mentally disabled a person in need of guardianship or will be mentally disabled a person in need of guardianship on attaining eighteen 18 years of age, it shall enter judgment specifying the powers of the guardian pursuant to sections 3069 and 3070 of this title and the duties of the guardian pursuant to section 3071 of this title.

(g)  Any party to the proceeding before the court may appeal the court’s decision in the manner provided in section 3080 of this title.

§ 3068a.  RIGHTS OF A WARD PERSON UNDER GUARDIANSHIP

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

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

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

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

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

(3)  The right to retain an attorney and seek legal advice independently without consent of the guardian, provided that any legal fees not authorized by the guardian are subject to review and approval by the court.

§ 3069.  POWERS OF A TOTAL GUARDIAN

(a)  If the court enters judgment pursuant to subsection 3068(f) of this title, it may appoint a total guardian if it determines that the respondent is unable to manage, without the supervision of a guardian, any or all aspects of his or her personal care and financial affairs.

(b)  When the person under guardianship has an advance directive, the authority of the agent and the instructions contained therein shall remain in effect unless the probate court expressly orders otherwise in a petition for review of the advance directive under 18 V.S.A. § 9718.

(c)  A total guardian shall supervise the ward through the exercise of the following powers The court shall grant powers to the guardian in the least restrictive manner appropriate to the circumstances of the respondent and consistent with any advance directive.  Guardianship powers shall be ordered only to the extent required by the respondent’s actual mental and adaptive limitations.  The court shall specify which of the following powers the guardian shall have and may further restrict each power so as to preserve the respondent’s authority to make decisions commensurate with respondent’s ability to do so:

(1)  the power to exercise general supervision over the ward person under guardianship.  This includes care, habilitation, education, and employment of the person under guardianship and choosing or changing the residence, subject to the requirements of sections 2691, 3073, and 3074 of this title, care, habilitation, education, and employment of the ward;

(2)  to approve or withhold approval of any contract, except for necessaries, which the ward wishes to make the power to seek, obtain, and give or withhold consent to the initiation or continuation of medical or dental treatment, subject to the provisions of section 3075 of this title and any constitutional right of the person under guardianship to refuse treatment, provided that the court in its discretion may place limitations on the guardian’s powers under this subdivision if appropriate under the circumstances, including requiring prior court approval for specific surgeries, procedures, or treatments; 

(3)  to approve or withhold approval of the ward’s request to sell or in any way encumber his or her personal or real property the power to exercise general financial supervision over the income and resources of the person under guardianship.  This includes the power to seek or apply for, receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the person under guardianship, to liquidate personal property for the benefit of the person under guardianship, to settle accounts, demands, claims, and actions by or against the person under guardianship, and to take any other action reasonably necessary to secure, preserve, protect, and defend the financial interests of the person under guardianship;

(4)  to exercise general supervision over the income and resources of the ward.  This includes the power to receive, invest, and expend all wages, compensation, insurance benefits, public benefits, and pensions for the benefit of the ward and to liquidate resources for the benefit of the ward the power to approve or withhold approval of any contract, except for necessaries, which the person under guardianship wishes to make;

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, subsection 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment the power to approve or withhold approval of the sale or encumbrance of real property of the person under guardianship subject to subchapter 6 of this chapter;

(6)  to receive, sue for, and recover debts and demands due to the ward, to maintain and defend actions or suits for the recovery or protection of the property or person of the ward, settle accounts, demands, claims, and actions by or against the ward, including actions for injuries to the property or person of the ward, and to compromise, release, and discharge the same on such terms as he or she deems just and beneficial to the ward the power to obtain legal advice and to commence or defend against court actions in the name of the person under guardianship. 

(c)(d)  The total guardian shall exercise his or her supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the need for supervision.

(1)  When a guardian has been granted some but not all guardianship powers, the guardianship shall be identified as a “limited guardianship” and the guardian identified as a “limited guardian.”

(2)  A person for whom limited guardianship has been granted retains all the powers identified in subsection (c) of this section except those which have been specifically granted to the limited guardian.

(e)  The guardian shall exercise supervisory powers in a manner which is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.

(f)  The guardian shall encourage the person under guardianship to participate in decisions, to act on his or her own behalf when practicable, and to develop or regain the capacity to manage his or her own personal affairs to the maximum extent possible.  The wishes, values, beliefs, and preferences of the person under guardianship shall be respected to the greatest possible extent in the exercise of all guardianship powers.

§ 3070.  POWERS OF A LIMITED GUARDIAN

(a)  If the court enters judgment pursuant to section 3068(f) of this title, it may appoint a limited guardian if it determines that the respondent is unable to manage some, but not all, aspects of his personal care and financial affairs.  The court shall specify those powers enumerated in section 3069 of this title which the limited guardian shall have and may further restrict each power so as to permit the ward to care for himself and his property commensurate with his ability to do so.

(b)  A person for whom a limited guardian has been appointed retains all legal and civil rights except those which have been specifically granted to the limited guardian by the court.

(c)  The limited guardian shall exercise his supervisory powers over the ward in a manner which is least restrictive of the ward’s personal freedom consistent with the order of the court.

§ 3071.  DUTIES OF GUARDIAN

(a)  The guardian shall maintain close contact with the ward person under guardianship and encourage maximum self-reliance on the part of the ward under his protection person under guardianship.

(b)  In addition to the powers vested in the guardian by the court pursuant to sections 3069 and 3070 of this title, the court may order the guardian to assure that the ward person under guardianship receives those benefits and services to which he or she is lawfully entitled and which he needs to maximize his or her opportunity for social and financial independence.  Those benefits and services include, but are not limited to:

(1)  education services for a ward person under guardianship who is of school age;

(2)  residential services for a ward person under guardianship who lacks adequate housing;

(3)  nutrition services;

(4)  medical and dental services, including home health care;

(5)  therapeutic and habilitative services, adult education, vocational rehabilitation or other appropriate services.

(c)  The guardian shall always serve the interests of the person under guardianship and shall bring any potential conflicts of interest to the attention of the court.

§ 3072.  GUARDIANS; INDIVIDUALS WHO MAY SERVE

(a)(1)  Competent individuals of at least eighteen 18 years of age may serve as guardians.  No individual who operates or is an employee of a boarding home, residential care home, nursing home, group home or other similar facility in which the ward resides may serve as guardian.

(2)  No individual may be appointed or serve as guardian for a person under or in need of guardianship if the individual:

(A)  operates or is an employee of a boarding home, residential care home, assisted living residence, nursing home, group home, developmental home, correctional facility, psychiatric unit at a designated hospital, or other similar facility in which the person under or in need of guardianship resides or is receiving care; and

(B)  provides direct care to or exercises authority over the person under or in need of guardianship.

(3)  No person may serve as guardian for the respondent who has served as guardian ad litem in the same proceeding. 

(4)  Notwithstanding the provisions of section 2603 of this title, the court shall have the discretion to appoint a guardian who is not a resident of this state, provided that the individual appointed is otherwise qualified to serve.

(b)  In appointing an individual to serve as guardian, the court shall take into consideration:

(1)  the nomination of a guardian in an advance directive or in a will;

 

(2)  the preference any current or past expressed preferences of the ward respondent;

(2)(3)  the geographic location of the proposed guardian;

(3)(4)  the relationship of the proposed guardian to and the ward respondent;

(4)(5)  the ability of the proposed guardian to carry out the powers and duties of the guardianship; and

(5)(6)  the willingness and ability of the proposed guardian to communicate with the respondent and to respect the respondent’s choices and preferences;

(7)  potential financial conflicts of interest between the ward respondent and the proposed guardian; and

(8)  results of any background checks.

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

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

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

(b)(1)  In an emergency, a guardian who has been granted the power to choose or change the residence of the ward person under guardianship pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward person under guardianship without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.

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

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

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

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

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

(4)  whether the guardian has considered alternatives.

§ 3074.  INSTITUTIONALIZATION OF MENTALLY DISABLED PERSONS COMMITMENT, STERILIZATION, INVOLUNTARY TREATMENT, AND INVOLUNTARY MEDICATION

Nothing in this chapter shall give the guardian of a ward person authority to:

(1)  place that person in a state school or hospital except pursuant to section 7601 et seq. of Title 18 or section 8801 et seq. of Title 18 in the Vermont state hospital or any psychiatric unit of a designated hospital as defined under 18 V.S.A. § 7101(4), unless:

(A)  the person consents in writing on a form adopted by the department that includes a representation that the person understands that his or her treatment will involve inpatient status, that the person desires to be admitted to the hospital, and that the person consents to admission voluntarily, without any coercion or duress; and

(B)  the guardian consents in writing to the admission.

(2)  consent to an involuntary treatment or medication petition pursuant to chapter 181 of Title 18.

(3)  consent to sterilization or to a petition for involuntary sterilization pursuant to chapter 204 of Title 18.

(4) consent to a petition for custody, care, or habilitation filed pursuant to chapter 206 of Title 18.

§ 3075.  CONSENT FOR MEDICAL OR DENTAL TREATMENT

(a)  When a ward whose right to consent to surgery or other medical procedure has not been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the treating physician shall determine if the person’s physical condition is such that the person has sufficient capacity to make a responsible decision.  If the person has such capacity, his informed consent shall be obtained before such surgery or medical procedure is performed.  In such cases, the ward’s consent shall be determinative and no other consent is necessary A person under guardianship retains the right to make medical and dental decisions unless that right has been restricted pursuant to subdivision 3069(c)(2) of this title.

(b)  When a ward whose right to consent to surgery or other medical procedures has been restricted pursuant to section 3069(b)(5) of this title is admitted to a hospital for nonemergency surgery or other nonemergency medical procedures requiring consent, the guardian may give such consent upon the advice of the treating physician and after obtaining permission of the probate court, after hearing, upon such notice as the court may direct. Unless an advance directive or the authority of an agent is expressly revoked or modified by the court pursuant to section 9718 of Title 18, the advance directive of a person under guardianship shall remain in effect, and the agent shall have sole authority to make health care decisions for the person under guardianship pursuant to chapter 231 of Title 18. 

(c)  If there is no agent named in the advance directive, or if the office of agent is vacant, the guardian shall follow the instructions contained in the advance directive.

(d)  For a person whose right to consent to medical or dental procedures has been restricted pursuant to subdivision 3069(b)(2) of this title, the guardian may give or withhold consent pursuant to this section and subject to any constitutional right of the person under guardianship to refuse treatment.

(e)  Consent to the procedure shall be given or withheld consistent with the manner in which the person under guardianship would have given or withheld consent, provided there is sufficient information concerning the person’s wishes.  In making this determination, the guardian and the court in reviewing a guardian’s decision under this section shall:

(1)  rely on written and oral expressions of the person under guardianship;

(2)  rely on available information concerning the wishes, values, beliefs, and preferences of the person under guardianship if the person’s written and oral expressions do not provide sufficient information; and

(3)  follow the best interests of the person under guardianship if subdivisions (1) and (2) of this subsection are inapplicable.  No decision to withhold or abate medical treatment will be based solely on the age, economic level, or level of disability of the person under guardianship.

(f)(1)  The guardian shall obtain prior written approval by the probate court following notice and hearing:

(A)  if the person under guardianship objects to the guardian’s decision, on constitutional grounds or otherwise;

(B)  if the court orders prior approval for a specific surgery, procedure, or treatment, either in its initial order pursuant to subdivision 3069(c)(2) of this title or anytime after appointment of a guardian;

(C)  except as provided in subdivision (2) of this subsection, and unless the guardian is acting pursuant to an advance directive, before withholding or withdrawing life-sustaining treatment other than antibiotics; or

(D)  unless the guardian is acting pursuant to an advance directive, before consenting to a do-not-resuscitate order unless a clinician as defined in subdivision 9701(5) of Title 18 certifies that an attempt to resuscitate would not prevent death and that the person under guardianship is likely to experience cardiopulmonary arrest before court approval can be obtained.  The guardian shall obtain the clinician’s certification prior to consenting to the

do-not-resuscitate order and shall file the clinician’s certification with the court after consent has been given.

(2)  The requirements of subdivision (1)(C) of this subsection shall not apply if obtaining a court order would be impracticable due to the imminent death of the person under guardianship.

(g)  The procedures in chapter 181 of Title 18 shall be the exclusive mechanism to obtain approval for administration of nonemergency involuntary psychiatric medication to a person under guardianship.

§ 3076.  ANNUAL REPORTS; FINAL ACCOUNTING; FEES

(a)  The guardian of a ward shall file an annual report with the appointing court on within 30 days of the anniversary date of his the appointment.

(b)  The annual report shall contain:

(1)  a financial accounting as required by section 2921 of this title if the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title;

(2)  a report on the progress and condition of the ward person under guardianship, including but not limited to, his or her health, medical and dental care, residence, education, employment, and habilitation;

(3)  a report on the manner in which the guardian carried out his or her powers and fulfilled his or her duties; and

(4)  the guardian’s opinion regarding the continued need for guardianship.

(c)  If the guardian has been granted power over the ward’s income and resources pursuant to section subdivision 3069(b)(4) of this title, at the termination of the guardianship, the guardian shall render a final accounting as required by section 2921 of this title.

(d)(1)  Except as provided in subdivision (2) of this subsection, the guardian shall not be paid any fees to which he or she may be entitled, or reimbursed for any of his or her expenses from the estate of the ward person under guardianship until the annual reports or final accounting required by this section have been filed with the court.

(2)  The guardian may at any time apply by motion to the probate court for payment of fees or reimbursement of expenses incurred as a result of the guardianship.  The court may grant the motion and approve payment if it finds the expenses were reasonable and supported by documentary evidence.    

§ 3077.  TERMINATION AND MODIFICATION OF GUARDIANSHIP

(a)  Any person under guardianship or any person interested in the welfare of the ward person under guardianship may file a motion for termination or modification of the guardianship.  Grounds for the termination or modification of the guardianship shall include:

(1)  the death of the guardian;

(2)  the failure of the guardian to file an annual report, or the failure to file such report in a timely manner;

(3)  the failure of the guardian to act in accord with an order of the court;

(4)  a change in the ability of the ward person under guardianship to manage his or her personal care or financial affairs;

(5)  a change in the capacity or suitability of the guardian for carrying out his or her powers and duties, including but not limited to any current or past expressed preferences of the person under guardianship to have an alternative person appointed as guardian.

(b)  When the grounds for termination or modification are those listed in subsections (a)(1), (2), (3), or (5) of this section, the court may appoint a successor guardian After notice and hearing, the court may terminate or modify the guardianship, appoint a successor guardian, or restrict the powers of a guardian, consistent with the court’s findings and conclusions of law.

(c)  Notice and hearing on the motion shall proceed in the manner set forth in sections 3064 and 3068 of this title.

(d)  Marriage of the person under guardianship shall not extinguish a guardian’s authority.

(e)  The following guardianship powers shall remain for up to two years after the death of a person under guardianship or until the appointment of an executor or administrator of the person’s estate:

(1)  the power to arrange and pay for a funeral;

(2)  the power to request medical, financial or other records of the person in guardianship;

(3)  the power to request an autopsy and to obtain the results thereof;

(4)  the power to make and file a financial accounting; and

(5)  any other powers which are incidental to the closing of and accounting for the guardianship and which are fully reported to the probate court.

§ 3078.  ANNUAL NOTICE TO WARD PERSON IN NEED OF GUARDIANSHIP

The appointing court shall send an annual notice to each ward person under guardianship and the ward’s counsel of record of each person under guardianship, advising the ward person under guardianship of his or her right to file a motion for termination or modification of the guardianship pursuant to section 3077 of this title.  The notice shall include a copy of any accountings, reports or other information filed by the guardian during the year, except when there is counsel of record and the court deems it is in the best interest of the ward person under guardianship to send the accountings, reports and other information to counsel only.

§ 3079.  VALIDITY OF PRIOR GUARDIANSHIP

All guardianships approved pursuant to section 2671 et seq. and section 2683 et seq. of this title prior to July 1, 1979 remain valid.  On the first anniversary date of such guardianship after July 1, 1979, the court which approved such guardianship shall send notice to each ward person under guardianship, his or her counsel of record, and a near relative of the ward person under guardianship, if known, advising them of the ward’s right of the person under guardianship’s to petition for termination or modification of the guardianship pursuant to section 3077 of this title.  Upon the filing of such a petition, the court shall promptly arrange for a comprehensive evaluation of the ward person under guardianship pursuant to section 3067 of this title.

§ 3080.  APPEALS

Orders of the court issued pursuant to the provisions of this subchapter may be appealed in such manner as provided in sections 2551 et seq. of Title 12 and Rule 72, Vermont Rules of Civil Procedure, provided, however, that any order issued pursuant to this subchapter shall not be stayed during the pendency of an appeal except by order of a court of competent jurisdiction.

§ 3081.  EMERGENCY TEMPORARY GUARDIAN PENDING FINAL HEARING ON PETITION

(a)  When a petition for guardianship has been filed, but adherence to the procedures set out in this subchapter would cause serious and irreparable harm to the respondent’s physical health or financial interests, the probate court may appoint a an emergency temporary guardian prior to the final hearing and decision on the petition, subject to the requirements of this section.

(b)  Upon motion of the petitioner, the court shall schedule a hearing on the appointment of a temporary guardian for the earliest possible date, appoint a guardian ad litem for the respondent, and notice shall be given as provided by the rules of probate procedure.  Upon a finding that serious and irreparable harm to the respondent’s physical health or financial interests would result during the pendency of petition, the court shall appoint a temporary guardian and shall specify those powers which the temporary guardian shall have in order to prevent serious and irreparable harm to the respondent.  The duration of the temporary guardianship shall not extend beyond the time the court renders a decision on the petition for guardianship.  If a guardianship petition is accompanied by a motion for emergency temporary guardianship, the court shall schedule a hearing on the appointment of an emergency temporary guardian for the earliest possible date.  The court shall appoint counsel for the respondent and cause notice to be given as provided by the Vermont Rules of Probate Procedure (VRPP).  Upon a showing by sworn affidavit that notice cannot be given within the time periods, in the manner, or to the persons required by the VRPP, the court may allow a hearing to go forward upon such notice as the court may direct.  The court may appoint an emergency temporary guardian if it finds that serious and irreparable harm to the respondent’s physical health or financial interests will likely result during the pendency of the petition.

(c)  A temporary guardian may be appointed without notice to the respondent and guardian ad litem only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious and irreparable harm will result to the respondent before a hearing on the appointment of a temporary guardian can be held.  On two days’ notice to the party who obtained the appointment of a temporary guardian without notice, or on such shorter notice to that party as the court may prescribe, the respondent or the guardian ad litem may appear and move dissolution or modification of the court’s order, and, in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.  An emergency temporary guardian may be appointed without notice to the respondent or respondent’s counsel only if it clearly appears from specific facts shown by affidavit or sworn testimony that immediate, serious, and irreparable harm will result to the respondent before the hearing on the appointment of an emergency temporary guardian can be held.  A request for ex parte emergency temporary guardianship under this section shall be made by written motion, accompanied by a petition for guardianship, unless waived by the court for good cause shown.  If the court appoints an ex parte emergency temporary guardian, the court shall immediately schedule a temporary hearing in accordance with subsection (b) of this section.  The ex parte order shall state why the order was granted without notice and include findings on the immediate, serious, and irreparable harm.  The ex parte order shall be for a fixed period of time, not to exceed 10 days, and shall expire on its terms unless extended after the temporary hearing.  If the temporary hearing cannot be held before the ex parte order expires, the ex parte order can be extended for good cause shown for an additional 10 days until the temporary hearing is held.

(d)  A temporary guardianship order expires when the court renders a final decision on the guardianship petition.  If the final decision is not rendered within 90 days of the filing of the petition, the court shall schedule a hearing to review the need for continuation of the temporary guardianship order.

Sec. 2.  PROPOSAL OF RULES

Within six months after the effective date of this act, the advisory committee on the Vermont Rules of Probate shall report to the legislative committee on judicial rules any changes to rules or forms that the committee determines are necessary or advisable as a result of this act.

Sec. 3.  GUARDIANSHIP TASK FORCE

(a)  The general assembly finds that:

(1)  Individuals under guardianship are among the state’s most vulnerable citizens.

(2)  Guardianship provides legal and human rights protections but may also be used to deprive vulnerable people of resources and fundamental rights.

(3)  Guardianship is increasing in Vermont.

(4)  Private guardians usually have no training or support in carrying out their guardianship responsibilities.

(5)  Probate judges and court registers who once were able to provide a measure of support for and monitoring of guardians are less able to do so as the volume of new guardianships and other court work increases their workload.

(6)  A comprehensive guardianship monitoring program would likely require significant additional staffing and resources and, as such, is not currently a cost effective or viable approach.

(b)  The guardianship education, improvement, and accountability task force is established.  Consistent with the findings in subsection (a) of this section and in recognition of the vulnerability of individuals under guardianship, the task force shall study ways, other than a staff-intensive monitoring model, for improving guardian accountability, assuring the protection of the rights and well-being of individuals under guardianship, and training and supporting guardians in the execution of their guardianship duties.

(c)  The task force shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.

(2)  Two members appointed by Vermont Legal Aid.

(3)  One member appointed by Vermont protection and advocacy.

(4)  Two members appointed by the secretary of human services, one of whom shall be a representative from the office of the public guardian.

(5)  One member appointed by the community of Vermont elders.

(6)   A member appointed by green mountain self-advocates.

(7)  Two members, appointed by the Vermont coalition for disability rights, who shall be family members of adults under guardianship.

(8)  One member appointed by Vermont psychiatric survivors.

(9)  One member appointed by the Vermont traumatic brain injury association.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the office of the court administrator on or before December 15, 2008.

(Committee vote: 9-0-2)


H. 641

     An act relating to nursing mothers in the workplace.

Rep. McCormack of Rutland City, for the Committee on General, Housing and Military Affairs, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  21 V.S.A. § 305 is added to read:
§ 305.  NURSING MOTHERS IN THE WORKPLACE

(a)  For an employee who is a nursing mother for up to three years after the birth of a child, the employer shall:

(1)  Provide uncompensated time throughout the day to express breast milk for her nursing child.

(2)  Make a reasonable accommodation to provide appropriate private space that is not a bathroom stall or a small storage area.

(b)  An employer may be exempted from the provisions of subsection (a) of this section if providing time for expressing breast milk would seriously disrupt the employer’s operations.

(c)  An employer shall not discriminate against an employee who exercises the rights provided under this section. 

Sec. 2.  21 V.S.A. § 303 is amended to read:

§ 303. PENALTY

Any employer who violates the provisions of this subchapter shall be fined assessed a civil penalty of not more than $100.00 for each and every violation.

(Committee vote: 7-0-1)

H. 863

     An act relating to creation and preservation of affordable housing and smart growth development.

 (Rep. Head of South Burlington will speak for the Committee on General, Housing and Military Affairs.)

Rep. Klein of East Montpelier, for the Committee on Natural Resources and Energy, recommends the bill be amended as follows:

     By striking Secs.1 through 4, Secs. 5 through 7, and Sec.10 in their entirety, by inserting in lieu thereof the following, and by renumbering the remaining sections to be numerically correct:

* * * Vermont Neighborhoods Program * * *

Sec. 1.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and:

(A)  that is located in one of the following:

(i)  A designated downtown, village center, new town center, or growth center; or

(ii)  An area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center, and is not more than 50 percent of the total acreage of the designated downtown, village center, or new town center; and

(B)  that contains substantially the following characteristics:

(i)  Its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles.                    

(ii)  It is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources.

(iii)  It incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing.

(iv)  It incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.

Sec. 2.  24 V.S.A. § 2793d is added to read:
§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center or a designated growth center served by municipal sewer infrastructure or a community or alternative

wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be developed according to the procedures established in sections 4441 and 4442 of this title, with regard to the development by the planning commission of a proposed bylaw, and its adoption or rejection by the municipal legislative body.  

Designation is possible in two different situations:

(1)  If an application is submitted in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  If an application is submitted in compliance with this subsection, by a municipality that does not have a designated growth center and that proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the downtown board, in its expanded configuration in which it considers growth center applications, shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that is outside but contiguous to a designated downtown district, designated village center, or designated new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and evidence that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Within 45 days of receipt of a completed application, the expanded downtown board shall designate a Vermont neighborhood if the board finds the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  The applicant shall demonstrate all of the following:

(1)  The municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title.

(2)  The cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 50 percent of the total acreage of the designated downtown district, village center, or new town center.

(3)  The contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title.

(4)  The Vermont neighborhood will be served by either:

(A)  a municipal sewer infrastructure; or

(B)  a community or alternative wastewater system approved by the agency of natural resources.

(5)  The municipal zoning bylaw requires both of the following:

(A)  Minimum residential densities that may be calculated by excluding land occupied by community wastewater systems, flood hazard areas, wetlands, rare and irreplaceable natural areas, necessary wildlife habitat, or other resource lands that are not able to be developed due to state or federal regulation, and that shall require the following:

(i)  No fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments.

(ii)  Higher density for duplexes and multi-family housing.

 (B)  Neighborhood design standards that promote compact, pedestrian-oriented development patterns that include the following:

(i)  Pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center.

(ii)  Interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

 (d)  Incentives for Vermont neighborhoods include the following:

(1)  The agency of natural resources shall charge no more than a $50.00 fee for wastewater applications where the applicant has received an allocation for sewer capacity from an approved municipal system.  Act 250 fees for residential developments in Vermont neighborhoods shall be 50 percent of the fee normally charged.

(2)  Fifty percent of Act 250 fees for all proposed development in Vermont neighborhoods shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance of a decision.

(3)  No land gains tax shall be levied on a transfer of land in Vermont neighborhoods.

(e)   Initial designation shall be for a period of three years.  After that time has expired, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated entity, even if the underlying designated entity was not designated originally by the expanded state board.  However, the expanded board may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)  require corrective action;

(2)  remove the Vermont neighborhood designation, with that removal not affecting any of the benefits previously awarded to the designated Vermont neighborhood; or

(3)  limit eligibility for the benefits established in this chapter, with the limitation not affecting any of the benefits previously awarded to the designated Vermont neighborhood.

(f)  Designation decisions made under this section may be appealed to the environmental court pursuant to Rule 5 of the Vermont Rules for Environmental Proceedings by an interested person as defined in subsection 4465(b) of this title.  Review by the environmental court shall be de novo.

* * * Agency of Natural Resources Fees * * *

Sec. 3.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.

* * * Act 250 Provisions * * *  

Sec. 4.  10 V.S.A. § 6001(3)(B) and (C) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 200 or more housing units or a mixed use project with 200 or more housing units, in a municipality with a population of 25,000 or more.

(II)  Construction of mixed income housing with 100 or more housing units or a mixed use project with 100 or more housing units, in a municipality with a population of 20,000 15,000 or more, but less than 25,000.

(ii)(III)  Construction of mixed income housing with 50 or more housing units or a mixed use project with 50 or more housing units, in a municipality with a population of 10,000 7,000 or more but less than 20,000 15,000.

(iii)(IV)  Construction of mixed income housing with 30 or more housing units or a mixed use project with 30 or more housing units, in a municipality with a population of 5,000 3,000 or more and less than 10,000 7,000.

(iv)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 5,000 3,000.

(v)(VI)  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have no adverse effect, an effect that will not be adverse provided that specified conditions are met, or an adverse effect that will be adequately mitigated, and if any imposed conditions are enforceable through a grant condition, deed covenant, or other legally binding document.

(ii) Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of mixed income housing located entirely within a Vermont neighborhood designated pursuant to 24 V.S.A. § 2793d, but outside of a growth center designated pursuant to 24 V.S.A. § 2793c or a downtown development district designated pursuant to 24 V.S.A. § 2793, “development" shall be determined in accordance with the numerical thresholds established in subdivision (3)(B)(i) of this section.

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Within any continuous period of five years, housing units constructed by a person entirely within a designated downtown district, or designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a person partially or completely outside a designated downtown development district, or designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district, or designated growth center, or designated Vermont neighborhood and within a five-mile radius.

(iii)  All housing units constructed by a person within a designated downtown development district, or designated growth center, or designated Vermont neighborhood within any continuous period of five years, commencing on or after the effective date of this subdivision, shall be counted together, but only if they are part of a discrete project located on a single tract or multiple contiguous tracts of land.

(iv)  In the case of  a project undertaken by a railroad, no portion of a railroad line or railroad right-of-way that will not be physically altered as part of the project shall be included in computing the amount of land involved.  In the case of a project undertaken by a person to construct a rail line or rail siding to connect to a railroad’s line or right-of-way, only the land used for the rail line or rail siding that will be physically altered as part of the project shall be included in computing the amount of land involved.

(v)  Notwithstanding subdivision (C)(iii) of this subdivision (3), any affordable housing units, as defined by this section, (3)(A)(iv) and subdivision (19) of this section, jurisdiction shall be determined exclusively by counting housing units, and when counting housing units to determine jurisdiction, only housing units in a discrete project on a single tract or multiple contiguous tracts of land shall be counted, regardless of whether located within an area designated under 24 V.S.A. chapter 76A, provided that the housing units are affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

Sec. 5. REPEAL

10 V.S.A. § 6001(16)(rural growth areas definition) is repealed.

Sec. 6.  10 V.S.A. § 6001(31) and (32) are added to read:

(31)  “Existing settlement” means an extant community center similar to the traditional Vermont center which is compact in size and contains a mixture of uses which may include commercial, industrial, and residential components which are, to a large extent, within walking distance of each other, and which have appreciably higher densities than densities that occur outside these areas.  For the purposes of this subdivision, the term shall include downtown development districts designated in accordance with 24 V.S.A. § 2793, village centers designated in accordance with 24 V.S.A. § 2793a, new town centers designated in accordance with 24 V.S.A. § 2793b, growth centers designated in accordance with 24 V.S.A. § 2793c, and Vermont neighborhoods designated in accordance with 24 V.S.A. § 2793d.  This term specifically excludes areas of commercial, highway-oriented uses commonly referred to as “strip development.”

(32)  “Strip development” means linear commercial development along an arterial highway leading from an existing settlement or connecting two existing settlements.  The characteristics of strip development, which need not all be present in order for strip development to exist, include the following:  broad road frontage; individual curb cuts for individual projects; lack of connection to existing settlements by anything except highway; limited accessibility to pedestrians; and lack of coordination with surrounding projects in terms of design, signs, lighting and parking.

Sec. 7.  10 V.S.A. § 6083a is amended to read:

§ 6083a.  ACT 250 FEES

* * *

(d)  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. § 2793d shall be no more than 50 percent of the fee otherwise charged, with 50 percent due with the application and 50 percent due within 30 days after issuance of a decision. 

Sec. 8.  10 V.S.A. § 6086(a)(5) is amended to read:

(5)  Will not cause unreasonable congestion or unsafe conditions with respect to use of the highways, sidewalks, bikeways, waterways, railways, airports, and airways, and other means of transportation existing or proposed and provides appropriate connections to transit, bicycle, and pedestrian networks, where existing or planned, with the objective of minimizing motor vehicle use.

Sec. 9.  10 V.S.A. § 6086(a)(9)(L) is amended to read:

(L)  Rural growth areas. A permit will be granted for the development or subdivision of rural growth areas when it is demonstrated by the applicant that in addition to all other applicable criteria provision will be made in accordance with subdivisions (9)(A) “impact of growth,” (G) “private utility service,” (H) “costs of scattered development” and (J) “public utility services” of subsection (a) of this section for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage.

Settlement Patterns.

(i)  Inside existing settlements, a permit shall be granted for development or subdivision of land if the applicant, in addition to other applicable criteria, demonstrates that the project will not significantly detract from Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside, which shall be accomplished by complying with planned densities that are appreciably higher than densities outside existing settlements within the municipality and region.  

(ii)  In rural areas outside existing settlements, a permit shall be granted for development or subdivision if, in addition to all other applicable criteria, the applicant demonstrates that the project:

(I)  will not substantially detract from Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside, which shall be accomplished by contributing to overall densities that are appreciably lower than densities planned for existing settlements within the municipality and region;

(II)  will not establish or extend a pattern of strip development along public highways.  In situations in which a pattern of strip development has already been established, development should reinforce compact in-fill site design;

(III)  will promote an efficient use of land, energy, roads, utilities and other supporting infrastructure through compact site development, clustering, or conservation subdivision design, in order to avoid conflicts with agriculture, forestry, and other natural resource‑based land uses; and will promote the preservation of open space, as well as the protection of headwaters, streams, shorelines, floodways, rare and irreplaceable natural areas, necessary wildlife habitat, wetlands, endangered species, productive forest lands, and primary agricultural soils.

* * * Consolidated Appeals * * *

Sec. 10.  10 V.S.A. § 8502(9) is added to read:

(9) “State board,” also referred to as the “Vermont downtown development board,”  means a board created pursuant to 24 V.S.A. § 2792. 

Sec. 11.  10 V.S.A. § 8503(b)(4) is added to read:

(4)  Appeals from designation decisions issued by the state board in its review of a Vermont neighborhood for conformance with the criteria of 24 V.S.A. §  2793d. 

Sec. 12.  10 V.S.A. § 8504(a) is amended to read:

(a)  Act 250 and agency appeals.  Within 30 days of the date of the act or decision, any person aggrieved by an act or decision of the secretary, a district coordinator, or a district commission under the provisions of law listed in section 8503 of this title, or any party by right, may appeal to the environmental court. Within 30 days of the date of a Vermont neighborhood designation decision issued by the state board under 24 V.S.A. chapter 76A, an interested person, as defined in 24 V.S.A. § 4465(b), may appeal to the environmental court.

Sec. 13.  10 V.S.A. § 8504(c)(2) is amended to read:

(2) Upon the filing of an appeal from the act or decision of the secretary or from a Vermont neighborhood designation decision of the state board  under the provisions of law listed in section 8503 of this title, the appellant shall provide notice of the filing of an appeal to the following persons: the applicant before the agency of natural resources or the state board, if other than the appellant; the owner of the land where the project is located if the applicant is not the owner; the municipality in which the project is located; the municipal and regional planning commissions for the municipality in which the project is located; if the project site is located on a boundary, any adjacent Vermont municipality and the municipal and regional planning commissions for that municipality; any state agency affected; the solid waste management district in which the project is located, if the project constitutes a facility pursuant to subdivision 6602(10) of this title; all persons required to receive notice of receipt of an application or notice of the issuance of a draft permit; and all persons on any mailing list for the decision involved. In addition, the appellant shall publish notice not more than 10 days after providing notice as required under this subsection, at the appellant's expense, in a newspaper of general circulation in the area of the project which is the subject of the decision.

Sec. 14.  10 V.S.A. § 8504(n) is amended to read:

(n) Intervention. Any person may intervene in a pending appeal if that person:

(1) appeared as a party in the action appealed from and retained party status;

(2) is a party by right;

(3) is the natural resources board, or either panel of the board;

(4) is a person aggrieved, as defined in this chapter;

(5) qualifies as an "interested person," as established in 24 V.S.A. § 4465, with respect to appeals under 24 V.S.A. chapter 117 or appeals of a Vermont neighborhood designation decision by the state board; or

(6) meets the standard for intervention established in the Vermont Rules of Civil Procedure.

* * * Chapter 117 Conditional Use Appeals * * *

Sec. 15.  24 V.S.A. § 4471(e) is added to read:

(e)  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel that the density of a proposed residential development within a designated downtown development district, designated growth center, or Vermont neighborhood seeking conditional use approval shall not result in an undue adverse effect on the character of the area affected as provided in subdivision 4414(3)(A)(ii) of this title is not subject to appeal.

* * * Reports * * *

Sec. 16.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

Sec. 17.   STATE SURPLUS LAND AND HOUSING

     The department of housing and community affairs, in consultation with the Vermont housing finance agency, the Vermont housing and conservation board, and other interested parties, shall develop program recommendations for the use of state land that may be available and appropriate for the creation of affordable housing, exclusively.  The proposal shall include methods to ensure that each affordable housing project shall include a substantial number of permanently affordable units.  The department shall present the program recommendations no later than January 15, 2009 to the house committee on general, housing and military affairs, the senate committee on economic development, housing and general affairs, and the house and senate committees on natural resources and energy.

(Committee vote: 7-4-0)

Rep. Peterson of Williston, for the Committee on Ways and Means, recommends the bill ought to pass when amended as recommended by the Committee on Natural Resources and when further amended as follows:

First:  In Sec. 2, in 24 V.S.A. § 2793d(d), by striking subdivisions (1) through (3) and inserting new subdivisions (1) through (3) to read:

(1)  The agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system.  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.

(2)  Fifty percent of Act 250 fees under 10 V.S.A. § 6083a  for proposed development in Vermont neighborhoods shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  No land gains tax under Chapter 236 of Title 32 shall be levied on a transfer of land in a Vermont neighborhood.

Second:  By striking Sec. 7 and inserting a new Sec. 7 to read:

Sec. 7.  10 V.S.A. § 6083a is amended to read:

§ 6083a.  ACT 250 FEES

* * *

(d)  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. § 2793d shall be no more than 50 percent of the fee otherwise charged under this section, with 50 percent due with the application and 50 percent due within 30 days after issuance or denial of the permit. 

and the committee further recommends that the underlying bill be amended as follows:

First:    On pages 14 and 15, by striking Sec. 4a and inserting a new Sec. 4a to read:

Sec. 4a.  24  V.S.A. § 2793e is added to read:

§2793e.  MUNICIPAL FEE FOR EXEMPT HOUSING UNIT IN A VERMONT NEIGHBORHOOD

(a)  The developer of a project in a Vermont neighborhood designated in accordance with 24 V.S.A. § 2793d and exempted from Act 250 review under the definition of “development” in 10  V.S.A. § 6001(3)(B) shall pay a municipal fee of $500.00 for each housing unit in the exempt project. The fee shall be paid to the municipality in which the development is located at the time of the closing of the initial sale of the unit.  Municipalities shall have the authority to collect and enforce fees imposed by this section in the manner authorized for the collection of municipal impact fees under chapter 131 of Title 24.

(b)  Revenues from the fees imposed by this section may be used by the municipality only to improve or create public infrastructure required by the Vermont neighborhoods program under 24 V.S.A. § 2793d; to cover the municipality’s expenses of the planning process relating to the Vermont neighborhoods program; or to create pedestrian and multimodal transportation infrastructure, recreation facilities, or other services deemed necessary by the municipality as a result of new housing units created under the Vermont neighborhoods program.

Second:   On page 27, by striking Sec. 14 and inserting a new Sec. 14 to read:

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter

one-quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

(Committee vote: 6-4-1)

J. R. H. 54

     Joint resolution urging Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets.

Rep. Krawczyk of Bennington, for the Committee on Natural Resources and Energy, recommends the resolution ought to be adopted.

( Committee Vote: 11-0-0)

(For text of resolution see House Journal 2/27/2008, P. 345)

Senate Proposal of Amendment

J.R.H. 51

     Joint resolution supporting the Hanover High School kids for a cooler planet reusable shopping bag campaign.

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

First:  In the fourth whereas clause, after the number “12” by inserting the word million

Second:  In the seventh whereas clause, by striking out the word “nondisposable” and inserting in lieu thereof the word disposable

(For text of resolution  see House Journal 2/26/2008, P.340)

PUBLIC HEARINGS

Wednesday, March 12, 2008, Room 11 – 6:30 – 8:30 PM, Senate Education Committee – Changing the Department of Education to an Agency, and the Commissioner to a Secretary, for Pre-K through Grade 16.

Thursday, March 13, 2008, Room 11 – 6.00 – 8.00 PM,  House Committee on Ways and Means – H. 866 – Education Adjusted Gross Income Tax & H. 869 – Local Affordability Education Formula (LEAF)

     Thursday, March 27, 2008, Room 11 – 5:00 –7:00 PM, House Committee on Fish, Wildlife and Water Resources – H. 543  Funding of the Department of Fish and Wildlife

CROSSOVER DEADLINE

            All bills must be reported out by the committees of reference by the end of the day of Friday, March 14.  Bills that are then referred to a money committee must be reported out of the money committee by the end of the day of the following Friday, March 21. 

 

            Exceptions to the foregoing deadlines include the major money bills (Appropriations, Transportation, Capital Construction, and the Misc. Tax Bill).

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us