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House Calendar

MONDAY, APRIL 21, 2008

105th DAY OF ADJOURNED SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Third Reading

S. 226  Installation of Photoelectric Only Smoke Alarms............................... 1909

S. 271  Child Support for Children with Disabilities....................................... 1909

S. 301  Penalties for Assaulting Officer and Assault with Bodily Fluids........... 1909

Favorable with Amendment

H. 892  Amendments to Charter of Village of Enosburg Falls........................ 1909

          Rep. Manwaring for Government Operations

H. 893  Amendment to Charter of City of Rutland........................................ 1909

          Rep. Devereux for Government Operations

S. 107  Mapping Class Four Town Highways and Trails............................... 1910

          Rep. Minter for Transportation

S. 201  State Employee Whistleblower Protection........................................ 1911

          Rep. McDonald for Government Operations

S. 297  Definition of “Stiff Hitch” in Motor Vehicle Statutes........................... 1911

          Rep. Brennan for Transportation

S. 322  Relating to Vermont Dairy Promotion Council................................... 1912

          Rep. Bray for Agriculture

S. 372  Evictions, Unpaid Rent, Abandoned Property in Rental..................... 1915

          Rep. Head for General, Housing and Military Affairs

          Rep. Jewett Amendment..................................................................... 1921

J.R.H.  59  Accelerated Learning Opportunities........................................... 1923

          Rep. Clark for Education

Favorable

H. 659  Adoption of Amendments to Charter Town of Enosburg.................. 1923

          Rep. Manwaring for Government Operations

Senate Proposal of Amendment

H. 884  Prekindergarten Education Programs in School District.................... 1923

For Action Under Rule 52

J.R.H. 62  Commemorating Observance of Equal Pay Day.......................... 1925

Action Postponed Until Tuesday, April 22, 2008

Senate Proposal of Amendment

H. 709  Relating to Campgrounds................................................................ 1925

 

NOTICE CALENDAR

Favorable with Amendment

S. 114  Enhancing Mental Health Parity........................................................ 1925                    Rep. Fisher for Human Services

S. 168  Operating a Motor Vehicle Under Influence of Alcohol or Drugs....... 1933

          Rep. Lippert for Judiciary

S. 171  Relating to Discharge of Mortgage by an Attorney............................ 1935

          Rep. Flory for Judiciary

S. 246  Electronic Access to Criminal and Family Court Records.................. 1939

          Rep. Lippert for Judiciary

S. 281  Relating to End-of-Life Care and Pain Management.......................... 1940

          Rep. Frank for Human Services

          Rep. Hunt for Appropriations.............................................................. 1942

S. 283  Managed Care Organizations and Blueprint for Health...................... 1942

          Rep. Chen for Health Care

S. 311  Relating to the Use Value Appraisal Program.................................... 1949

          Rep. Randall for Fish, Wildlife and Water Resources

          Rep. Winters for Ways and Means..................................................... 1955

S. 313  Relating to a License to Store and Ship Wine.................................... 1956

          Rep. Moran for General, Housing and Military Affairs

          Rep. Sharpe for Ways and Means

S. 336  Relating to Juvenile Judicial Proceedings........................................... 1956

          Rep. Flory for Judiciary

          Rep. Haas for Human Services........................................................... 1984

S. 354  Public Agency Deferred Compensation Plans................................... 1985

          Rep. Jerman for Government Operations

S. 364  Audit and Reliability Assessment of VT Yankee Nuclear Plant.......... 1986

          Rep. Klein for Natural Resources and Energy

Favorable

S. 89  Payment of Rent into Court Pursuant to Commercial Lease................. 1993                    Rep. Pellett for Judiciary

S. 361  Relating to Authority to Lease the State Lottery................................ 1993

          Rep. Aswad for Ways and Means

S. 368  Addition of New Disinfectants in Public Water Systems.................... 1993

          Rep. McCullough for Fish, Wildlife and Water Resources

S. 373  Full funding of Decommissioning Costs of Nuclear Plant.................... 1993

          Rep. Kitzmiller for Commerce

Senate Proposals of Amendment

H. 149  Liquor identification and Tobacco License....................................... 1994

H. 257  Codification of Existing Community Justice Centers.......................... 1994

H. 615  Relating to Juvenile Judicial Proceedings.......................................... 1996

H. 748  Students to Possess and Self-Administer Emergency Medication...... 2036

Ordered to Lie

H. 549    Establishing Buffer Zones Along Waterways................................... 2038

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

     Third Reading

S. 226

An act relating to requiring the installation of photoelectric only smoke alarms.

S. 271

An act relating to child support for children with disabilities.

S. 301

An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.

Favorable with Amendment

H. 892

     An act relating to approval of amendments to the charter of the village of Enosburg Falls.

Rep. Manwaring of Wilmington, for the Committee on Government Operations, recommends the bill be amended by adding a new Sec. 13a to read:

Sec. 13a.  STATUTORY REVISION AUTHORITY

The legislative council, pursuant to section 424 of Title 2, is directed to change the spelling of the name of the town of Enosburg to Enosburgh wherever it appears in the Vermont Statutes Annotated, including chapters 115 and 219 of the Title 24 Appendix.

( Committee Vote: 10-0-1)

H. 893

     An act relating to approval of amendments to the charter of the city of Rutland.

Rep. Devereux of Mount Holly, for the Committee on Government Operations, recommends the bill be amended as follows:

First:  By adding a Sec. 3a as follows:

Sec. 3a.  24 V.S.A. App. chapter 9, § 34.1 is amended to read:

§ 34.1. Appropriations and expenditures

The board of school commissioners voters of the city shall appropriate such sums necessary annually approve a budget for the use of the schools pursuant to the general laws of the State of Vermont. The board of school commissioners shall not expend any money or incur any debt for any purpose by contract or otherwise beyond the amount of the appropriation made pursuant to the general laws of the State of Vermont approved in the budget, the provisions of section 17.4 of this charter shall apply to the board of school commissioners and any committee or member thereof. Accounts relating to federal and state funds shall be maintained as directed and regulated by state and federal authorized guidelines and shall be subject to audit by the city treasurer.

Second:  In Sec. 4, 24 V.S.A. App. chapter 9, § 34.2, by striking subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) as follows:

(a)  The Rutland City voters authorize the Rutland School commissioners to adopt annual general fund budgets without further voter approval, provided that the actual homestead tax rate in a year does not exceed $0.50 more than the adjusted equalized homestead rate as established by state officials pursuant to applicable law.  The voters of the city shall annually approve a budget for the use of Rutland city schools pursuant to the general laws of the state of Vermont.

(Committee vote: 10-0-1)

S. 107

An act relating to mapping class four town highways and trails and mass discontinuances of unmapped town highways.

Rep. Minter of Waterbury, for the Committee on Transportation, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 19 V.S.A. § 302(a)(6)(A) is amended to read:

(A) Unidentified corridors are town highways that:

(i) have been laid out as highways by proper authority through the process provided by law at the time they were created or by dedication and acceptance; and

(ii) do not, as of July 1, 2009 2010, appear on the town highway map prepared pursuant to section 305 of this title; and

(iii) are not otherwise clearly observable by physical evidence of their use as a highway or trail; and

(iv) are not legal trails.

Sec. 2.  19 V.S.A. § 305(h) is amended to read:

(h) Notwithstanding the provisions of subchapter 7 of chapter 7 of this title, on or before July 1, 2009 2010, a municipality's legislative body may vote to discontinue all town highways that are not included as such on the sworn certificate of the description and measurement of town highways filed with the town clerk on February 10 of that year pursuant to subsection (b) of this section. For the purposes of this section, a town highway shall be deemed to be included on the sworn certificate of the description and measurement of town highways if:

* * *

(For text see Senate Journal 1/29/2008 – P. 78 )

S. 201

An act relating to state employee whistleblower protection.

Rep. McDonald of Berlin, for the Committee on Government Operations, recommends that the House propose to the Senate that the bill be amended as follows:

First:  In Sec. 1, 3 V.S.A. § 972(4), after “promotion,” and before “or involuntary transfer” by inserting “imposition of a performance warning period,

Second:  In Sec. 1, 3 V.S.A. § 975(b), in the first sentence, by striking “raises” and inserting in lieu thereof “files”, and by striking “under a grievance procedure or similar process available to the employee” and inserting in lieu thereof “with the Vermont labor relations board

Third:  In Sec. 1, 3 V.S.A. § 975(b), by striking the second sentence in its entirety

Fourth:  In Sec. 1, 3 V.S.A. § 975(c), by striking “raises” and inserting in lieu thereof “files

(Committee vote: 10-0-1)

(For text see Senate Journal 4/2/08 – P. 498 )

S. 297

An act relating to clarifying the definition of “Stiff Hitch” in the motor vehicle statutes.

Rep. Brennan of Colchester, for the Committee on Transportation, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 4(77) is amended to read:

§ 4.  DEFINITIONS

Except as may be otherwise provided herein, and unless the context otherwise requires in statutes relating to motor vehicles and enforcement of the law regulating vehicles, as provided in this title and part 5 of Title 20, the following definitions shall apply:

* * *

(77)  “Stiff hitch” shall mean a tow bar used by a self-propelled motor vehicle to tow another validly registered self-propelled motor vehicle while all the wheels of the towed vehicle remain in contact with the ground.  The towed vehicle shall not be required to be registered.

Sec. 2.  23 V.S.A. § 3306(g) is added to read:

(g)  Except for subsection (b), nothing in this section shall apply to motorboats used exclusively for racing as sanctioned by the commissioner of the department of public safety under the provisions of section 3316 of this title, nor to a member of a sanctioned racing organization.

(Committee vote: 11-0-0)

(For text see Senate Journal 3/26/08 – P. 459 )

S. 322

An act relating to the Vermont Dairy Promotion Council.

Rep. Bray of New Haven, for the Committee on Agriculture, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds:

(1)  A viable agricultural sector in Vermont represents part of a secure regional food supply, which leads to energy and economic efficiencies.

(2)  The general public is increasingly interested in locally produced food.

(3)  Livestock raised on-farm for meat offers profit potential and economic opportunity for Vermont producers.

(4)  Meat from livestock raised on Vermont farms has an excellent reputation for quality and flavor.

(5)  In recent years, there has been increasing interest in the on-farm slaughter of animals for use by households for economic, ethnic, and humane reasons.

(6)  There are limited options for livestock slaughter in Vermont.

(7)  Historically, meat raised on Vermont farms has been safe and healthy; Vermont’s slaughtering and processing practices have excellent safety records.

(8)  The sustainability of Vermont’s local food systems depends on the relationship between the producer and the consumer.  Key aspects of such successful relationships include the producer’s integrity and the consumer’s interest in and knowledge of how the food is raised, harvested, and processed.

(9)  Community-supported agriculture programs can serve as models for meat producers interested in marketing directly to consumers.

(10)  Raising meat, fruits, and vegetables as close as possible to the kitchens of the end-user minimizes the carbon footprint of the entire food system.

(11)  The dairy promotion council should be required to report annually to the legislature, as well as the governor, on its activities, the amount of money received, and the expenditures thereof.

(b)  It is therefore the intent of the general assembly in enacting this legislation to:

(1)  Assure the continuance of a safe, local food supply.

(2)  Maintain the Vermont meat inspection service’s “at least equal to” status with the federal government’s USDA food safety inspection service.

(3)  Provide for collective ownership of animals raised and slaughtered on Vermont farms where the meat is distributed only to the owners.

(4)  Better understand the rules for building approved slaughter and processing facilities in Vermont and compare Vermont’s meat inspection regulations to other states.

(5)  Determine ways to build cost-effective slaughter and processing facilities and the feasibility of cooperative ownership.

(6)  Promote and encourage growth in Vermont’s livestock industry and the production of meat for local consumption by allowing for more on-farm slaughter and processing of livestock, creating opportunity for the development of more commercial slaughter and processing facilities, and by supporting those currently in the industry.

(7)  Provide more opportunities for Vermont livestock farmers and the supporting slaughter and processing industry to meet the growing demand for animals to be slaughtered and processed by ethnic and religious groups in accordance with their practices and beliefs.

* * * Dairy Promotion Council * * *

Sec. 2.  6 V.S.A. § 2972(b) is amended to read:

(b)  Included among the powers of the council in connection with the enforcement of this chapter are the powers to require reports from any person subject to this chapter; to adopt, rescind, modify, and amend all proper and necessary rules, regulations and orders to administer this chapter, which rules, regulations and orders shall be promulgated by publication in the manner prescribed therefor by the council and shall have the force and effect of law when not inconsistent with existing laws; to administer oaths, subpoena witnesses, take depositions, and certify to official acts; to require any dealer to keep such true and accurate records and to make such reports covering purchases, sales, and receipts of dairy products and related matters as the council deems reasonably necessary for effective administration, which records shall be open to inspection by the secretary of agriculture, food and markets at any reasonable time and as often as may be necessary, but information thus obtained shall not be published or be open to public inspection in any manner revealing any individual dealer’s identity, except as required in proceedings to enforce compliance; to keep accurate books, records, and accounts of all of its dealings, and to make annually a full report of its doings to the house and senate committees on agriculture and the governor, which shall show the amount of money received and the expenditures thereof.  The report shall be submitted annually on or before January 15.  The Vermont agency of agriculture, food and markets shall perform the administrative work of the council as directed by the council.  The council shall reimburse the agency of agriculture, food and markets for the cost of services performed by the agency.

Sec. 3.  LIVESTOCK STUDY

The legislative council shall consult with local producers, the Vermont congressional delegation, the agency of agriculture, food and markets, and the department of education and develop proposals for a Vermont locally produced meat-in-schools program.  The goals shall be to use existing resources to procure locally produced food products processed in Vermont and inspected by the Vermont agency of agriculture, food and markets to bolster the safety of the food in schools while supporting the Vermont agricultural industry.

Sec. 4.    AGENCY OF AGRICULTURE, FOOD AND MARKETS;
             SLAUGHTER ON PREMISES STUDY

In consultation with interested parties the agency of agriculture, food and markets shall study and recommend actions to meet the objectives set forth in Sec. 1(b) of this act.  The results of such study and any actions recommended shall be included in a report to the house and senate committees on agriculture on or before January 15, 2009.

Sec. 5.  6 V.S.A. § 3306(f) is amended to read:

(f)  Itinerant custom slaughterers, who slaughter solely at a person’s home or farm and who do not own, operate or work at a slaughtering plant shall be exempt from the licensing provisions of this section.  An itinerant custom slaughterer may slaughter livestock owned by an individual who has entered into a contract with a person to raise the livestock on the farm where it is intended to be slaughtered.

Sec. 6.  9 V.S.A. § 2465a is added to read:

§ 2465a.  DEFINITION OF LOCAL AND LOCALLY GROWN

For the purposes of this chapter and rules adopted pursuant to subsection 2453(c) of this chapter, “local,” “locally grown,” and any substantially similar term shall mean that the goods being advertised originated within Vermont or 30 miles of the place where they are sold, measured directly, point to point, except that the term “local” may be used in conjunction with a specific geographic location, such as “local to New England,” or a specific mile radius, such as “local–within 100 miles,” as long as the specific geographic location or mile radius appears as prominently as the term “local,” and the representation of origin is accurate.

Sec. 7.  EFFECTIVE DATE

This act shall take effect upon passage, except Sec. 5 which shall take effect April 15, 2009.

(Committee vote: 11-0-0)

(For text see Senate Journal 3/21/08 – P. 413 )

S. 372

An act relating to evictions, unpaid rent and abandoned property in rental property.

Rep. Head of South Burlington, for the Committee on General, Housing and Military Affairs, recommends that the House propose to the Senate that the bill be amended as follows:

     First: In Sec. 5. 9 V.S.A. § 4467 by striking subsection (a) and inserting in lieu thereof the following:

(a)  Termination for nonpayment of rent.  Termination for nonpayment of rent.  The landlord may terminate a tenancy for nonpayment of rent by providing actual notice to the tenant of the date on which the tenancy will terminate which shall be at least 14 days after the date of the actual notice.  The rental agreement shall not terminate if the tenant pays or tenders all arrearages prior to the termination date.  A tenant may not defeat a notice to terminate by payment of arrearages more than three times in 12 months. rent due through the end of the rental period in which payment is made or tendered.  A defendant may not defeat an ejectment action based on nonpayment of rent if the landlord has sent a termination notice based on nonpayment of rent more than three times in 12 months, provided the landlord has sent actual notice no earlier than seven calendar days from the date the rent is due for each notice under this section. Acceptance of partial payment of rent shall not constitute a waiver of the landlord’s remedies to commence or continue an ejectment action pursuant to chapter 169 of Title 12 for nonpayment of rent.

     Second:  In Sec. 5.  9 V.S.A. § 4467 by striking subsection (e) and inserting in lieu thereof the following:

(e)  Termination by landlord for no cause under terms of written rental agreement.  If the landlord terminates a tenancy in accordance with the terms of there is a written rental agreement, the notice to terminate for no cause shall be at least 30 days before the end or expiration of the stated term of the rental agreement, if rent is payable on a monthly basis and the tenancy has continued for two years or less. The notice to terminate for no cause shall be at least 60 days the rent is paid on a monthly basis and before the end or expiration of the term of the rental agreement if the tenancy has continued for more than two years.  The If there is a written week-to-week rental agreement, the notice to terminate for no cause shall be at least seven days, if rent is payable on a weekly basis; however, a notice to terminate for nonpayment of rent shall be as provided in subsection (a) of this section.

     Third: By adding two new Secs., Sec. 10 and Sec. 11, to read as follows:

Sec. 10.  20 V.S.A. Part 7A, chapter 181 is added to read:

Chapter 181.  RENtal Housing Safety and Habitability

§ 3201.  LEGISLATIVE PURPOSE AND INTENT

It is the intent of the general assembly to provide for rental housing safety and habitability and to establish a statewide rental housing inspection program and registry to achieve all the following goals:

(1)  Promote the health and safety of the citizens of Vermont.

(2)  Facilitate compliance with existing health and safety standards.

(3)  Provide support to municipal health officers.

(4)  Create a resource for tenants and landlords.

(5)  Enable communities to focus on problem properties.

(6)  Encourage a private sector response to a public health and safety need.

(7)  Reduce fire fatalities.

§ 3202.  SAFE RENTAL HOUSING TASK FORCE

(a)  A safe rental housing task force is created to consist of the following 12 members:

(1)  The director of the division of fire safety or designee.

(2)  The commissioner of the department of health or designee.

(3)  The commissioner of the department of housing and community affairs or designee.

(4)  The attorney general or designee.

(5)  The executive director of the Vermont housing finance agency or designee.

(6)  A representative of commercial landlords.

(7)  A representative of nonprofit landlords.

(8)  A tenant representative.

(9)  A municipal inspection program representative.

(10)  A town health officer from a municipality without an exempt program.

(11)  A regional revolving loan fund representative.

(12)  An architect.

(b)  The speaker of the house and the senate president pro tempore shall appoint members of the task force that are not ex-officio and shall designate a chair.

(c)  Before January 15, 2009, the task force shall:

(1)  Identify information to be gathered for the rental housing registry, develop a questionnaire for rental unit sites and coordinate with existing data collected by the department of health, the department of taxes, the department of housing and community affairs, and the department of public service.

(2)  Develop a simplified rental housing code, to include lead safety, habitability, and basic life safety standards.

(3)  Establish a priority for inspections based on factors including:  the age of the rental unit, a score of the rental units’ self-assessment, and complaints from rental units at the address.

(4)  Develop procedures for scheduled, complaint-based, emergency and time-of-sale inspections, including a time frame and a priority for scheduled inspections.

(5)  Develop standards for licensed rental housing inspectors to include:

(A)  Training standards.

(B)  A code of professional ethics.

(C)  Curriculum outlines and a delivery mechanism.

(6)  Recommend a fee structure necessary and appropriate to implement the inspection program and registry.

(7)  Establish a procedure for issuing a certificate of habitability.

(8)  Develop procedures to assure enforcement and compliance.

(9)  Make recommendations regarding the role of town health officers in regard to safe rental housing in municipalities without an exempt program.

(10)  Develop training and education resources for landlords and tenants, including all the following:

(A)  A rental housing code self-assessment checklist.

(B)  A one‑stop shopping resource for rental unit owners and managers that provides:

(i)  Lead safety, minimum housing habitability, and basic life safety standards available from one site.

(ii)  Coordinated training across disciplines for owners and managers of rental housing units.

(11)  Recommend incentives and develop a process for nonexempt municipalities to establish an inspection program.

(12)  Establish an implementation schedule, to begin July 1, 2009, that includes all the following:

(A)  Training of inspectors and certification by the department of public safety.

(B)  Collection of rental housing information for the registry.

(C)  Collection of fees.

(D)  Commencement of inspections beginning January 1, 2010.

(13)  Recommend staffing levels necessary to establish and maintain the program and provide for enforcement.

(14)  Recommend an appropriation sufficient to fund the certification program, licensing, complaint-driven inspections, enforcement, and the registry.

(15)  Develop a system for coordinating appropriate displacement services.

(16)  Develop a program and identify resources for repair and improvement.

(d)  The task force shall submit a written report on its progress on or before January 15 of each year to the house committee on general, housing and military affairs and the senate committee on economic development, housing and general affairs.

§ 3203.  RENTAL HOUSING SAFETY AND HABITABILITY FUND;

              ESTABLISHED

(a)  A rental housing safety and habitability fund is established in the state treasury for the purpose of creating a statewide rental housing inspection program to be administered by the department of public safety for the purposes of collecting and maintaining data about rental housing units in Vermont and providing education, training, and support to landlords and tenants to assure that the safety and habitability of rental housing are maintained for the benefit of owners, tenants, and communities.  The fund shall provide financing for scheduled, complaint-based, and emergency inspections of rental housing units, the enforcement of orders issued in conjunction with inspections, and enhancing communications among owners, tenants, and compliance personnel.

(b)  Proceeds from fees, grants, donations, contributions, and other sources of revenue that may be provided by statute or by rule may be deposited in the fund.  Interest earned on the fund and any balances remaining at the end of a fiscal year shall be retained in the fund.

§ 3204.  RENTAL HOUSING REGISTRY

The department of public safety in association with the Vermont housing finance agency, the department of health, and the department of housing and community affairs shall manage a database set up by a private contractor to include all rental housing, including rented single-family homes and rental units in owner-occupied multi-family buildings of two or more rental units and excluding vacation homes.

§ 3205.  RENTAL HOUSING SAFETY INSPECTOR LICENSING

               PROGRAM

The department of public safety shall establish and manage a licensing program for rental housing safety inspectors to begin by July 1, 2009.

§ 3206.  RENTAL HOUSING HEALTH AND SAFETY STANDARDS

The department of public safety shall adopt minimum standards that apply to existing rental housing.  The standards shall include life safety, electrical, plumbing, and boiler codes, the rental housing health code, and lead paint requirements.

§ 3207.  RENTAL HOUSING SAFETY INSPECTION PROGRAM

The department of public safety shall establish a cyclical and point-of-sale rental housing safety inspection program beginning January 1, 2010.

(1)  Regular inspections shall be carried out by a licensed rental housing safety inspector under contract with the unit owner to assure units meet the rental housing health and safety standards.

(2)  Complaint-driven inspections shall be carried out by a licensed rental housing safety inspector under contract with the state or the municipality.

§ 3208.  RULES

The department of public safety shall adopt rules to implement the recommendations of the safe rental housing task force to carry out the purposes of this chapter.  The department shall propose such rules no later than

January 15, 2009.

§ 3209.  EXEMPTIONS

Rental housing units subject to the jurisdiction of municipal housing programs organized pursuant to 24 V.S.A. chapter 123 are exempt from the provisions of this chapter.  This chapter shall not be interpreted to limit or decrease the authority of the exempt municipal housing program in regard to building, housing, and fire safety codes.  A municipal program may lose this exemption if the commissioner of public safety determines that any of the following is true:

(1)  The habitability and enforcement criteria, including standards for issuing certificates of habitability, are less stringent than those of the state program.

(2)  Regularly scheduled inspections of the municipal program are less frequent than those of the state program.

(3)  The municipal program permits rental of units that lack a current certificate of habitability.

(4)  Any other aspect of the municipal program is less stringent than the state program.

Sec. 11.  APPROPRIATION

In fiscal year 2009, there is appropriated from the general fund to the department of public safety the amount of $30,000.00 to be used by the department for the purpose of retaining a consultant to assist the safe rental housing task force in carrying out its duties under chapter 181 of Title 20.

(Committee vote: 7-1-0)

     Amendment to be offered by Rep. Jewett of Ripton to S. 372

     Moves the House propose to the Senate to amend the bill as follows:

     First:  By striking Sec. 1 and inserting in lieu thereof the following:
Sec. 1.  9 V.S.A. § 4451(1) is amended to read:

(1)  “Actual notice” means receipt of written notice hand-delivered or mailed to the last known address.  A rebuttable presumption that the notice was received three days after mailing is created if the sending party proves that the notice was sent by first class or certified United States mail.   

     Second:  In Sec. 2 9 V.S.A. § 4461 in subsection (c) by striking the first two sentences and inserting in lieu thereof the following:

A landlord shall return the security deposit along with a written statement itemizing any deductions to a tenant within 14 days from the date on which the landlord discovers that the tenant vacated or abandoned the dwelling unit, with a written statement itemizing any deductions or the date the tenant vacated the dwelling unit, provided the landlord received notice from the tenant of that date.

     Third:  In Sec. 4, 9 V.S.A. §4465(c) by striking the words “it may be presumed” and inserting in lieu thereof the words “there is a rebuttable presumption

     Fourth:  In Sec. 5. 9 V.S.A. § 4467 by striking subsection (a) and inserting in lieu thereof the following:

(a) Termination for nonpayment of rent. Termination for nonpayment of rent. The landlord may terminate a tenancy for nonpayment of rent by providing actual notice to the tenant of the date on which the tenancy will terminate which shall be at least 14 days after the date of the actual notice. The rental agreement shall not terminate if the tenant pays or tenders all arrearages prior to the termination date. A tenant may not defeat a notice to terminate by payment of arrearages more than three times in 12 months rent due through the end of the rental period in which payment is made or tendered. Acceptance of partial payment of rent shall not constitute a waiver of the landlord's remedies for nonpayment of rent.

      Fifth:  In Sec. 5, 9 V.S.A. §4467(b), by striking subdivision (2) and inserting in lieu thereof the following:

(2)  When termination is based on criminal activity, illegal drug activity, or acts of violence any of which threaten the health or safety of other residents, the landlord may terminate the tenancy by providing actual notice to the tenant of the date on which the tenancy will terminate which shall be at least 15 days from the date of the actual notice.

     Sixth:  In Sec. 5, 9 V.S.A. §4467, in subsection (i) by striking the first complete sentence and inserting in lieu thereof the following;

All actual notices that are in compliance with this section shall not invalidate any other actual notice and shall be a valid basis for commencing and maintaining an action for possession pursuant to this chapter, chapter 153 of Title 10, chapter 14 of Title 11, or chapter 169 of Title 12, notwithstanding that the notices may be based on different or unrelated grounds, dates of termination, or that the notices are sent at different times prior to or during an ejectment action. 

     Seventh:  In Sec. 5, by adding a new subsection (k) to read as follows:

(k)  A notice to terminate a tenancy shall be insufficient to support a judgment of eviction unless the proceeding is commenced no later than 60 days from the termination date set forth in the notice.

     Eighth:  In Sec.7. 12 V.S.A. §4773 by striking the final sentence and inserting in lieu thereof the following: “A defendant may not defeat an ejectment action by payment of all rent in arrears, interest, and court costs more than one time in 12 months.  The 12-month period shall begin on the day the payment is made.”

     Ninth:   In Sec. 8.  12 V.S.A. § 4853a(b), before the final period by adding the words “but shall cease upon execution of a writ of possession

No Senate Amendments

J. R. H. 59

     Joint resolution urging secondary school and post secondary educators and administrators to collaborate on accelerated learning opportunities for Vermont high school students.

     Rep. Clark of Vergennes, for the Committee on Education, recommends that the resolution be amended in the tenth Whereas clause by striking the phrase “the UVM administration is” and inserting in lieu thereof “the Vermont State Colleges and the UVM administration are” 

(Committee vote: 11-0-0)

(For text see House Journal 4/15/08 – P. 944)

Favorable

H. 659

     An act relating to approval of the adoption of the charter of the town of Enosburg.

Rep. Manwaring of Wilmington, for the Committee on Government Operations, recommends the bill ought to pass.

( Committee Vote: 10-0-1)

Senate Proposal of Amendment

H. 884

     An act relating to ensuring quality in prekindergarten  education programs offered by or through school districts.

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

First:  In Sec. 2, subsection (a) by striking out the words “any prekindergarten education program offered by a school district” and inserting in lieu thereof the words any prekindergarten education program operated by a school district or by a private provider on behalf of a school district

Second:  By adding a new section to be Sec. 3 to read:

Sec. 3.  Sec. 15 of No. 62 of the Acts of 2007 is amended to read:

Sec. 15.  EFFECTIVE DATES

This act shall take effect on July 1, 2007, except that the rules required by Sec. 3 of this act shall apply beginning in the 2008–2009 academic year.  A prekindergarten education program operated by a school district or by a private provider on behalf of a school district that was operating on or before
October 1, 2008 shall have one year from the effective date of the rules required by Sec. 3 of this act to achieve full compliance with provisions in the rules related to conducting child development assessments and governing the manner in which school districts and private providers establish and negotiate contract payments.

Third:  By adding two new section to be numbered Secs. 4 and 5 to read as follows:

Sec. 4.  16 V.S.A. § 4001(1)(C) is amended to read:

(C)  The full-time equivalent enrollment for each prekindergarten child as follows:  If a child is enrolled in 10 or more hours of prekindergarten education per week or receives 10 or more hours of essential early education services per week, the child shall be counted as one full-time equivalent pupil. If a child is enrolled in six or more but fewer than 10 hours of prekindergarten education per week or if a child receives fewer than 10 hours of essential early education services per week, the child shall be counted as a percentage of one full-time equivalent pupil, calculated as one multiplied by the number of hours per week divided by ten.  A child enrolled in prekindergarten education for fewer than six hours per week shall not be included in the district’s average daily membership.  Although there is no limit on the total number of children who may be enrolled in prekindergarten education or who receive essential early education services, the total number of prekindergarten children that a district may include within its average daily membership shall be limited as follows:

(i)  All children receiving essential early education services may be included.

(ii)  Of the children enrolled in prekindergarten education offered by or through a school district who are not receiving essential early education services, the greater of the following may be included:

(I)  ten children; or

(II)  the number resulting from:

(aa)  one plus the average annual percentage increase or decrease in the district’s first grade enrollment average daily membership as counted in the census period of the previous five years; multiplied by

(bb)  the most immediately previous year’s first grade census count average daily membership; or

(III)  the total number of four-year-olds in the district  the total number of children residing in the district who are enrolled in the prekindergarten program or programs and who are eligible to enter kindergarten in the district in the following academic year

Sec. 5.  16 V.S.A. § 4001(15) is amended to read:

(15)  “Prekindergarten child” means a three- or four-year-old child who is enrolled in a prekindergarten program offered by or through a public school district pursuant to rules adopted under section 829 of this title or who is receiving essential early education services offered pursuant to section 2956 of this title.  Prekindergarten child also means a five-year-old child who otherwise meets the terms of this definition if that child is not yet eligible for or enrolled in kindergarten.

No House Amendments

For Action Under Rule 52

     J. R. H. 62

     Joint resolution commemorative the observance of 2008 Equal Pay Day.

(For text see House Journal Friday, April 18, 2008)

Action Postponed Until Tuesday, April 22, 2008

Senate Proposal of Amendment

H. 709

     An act relating to campgrounds.

Pending Question: Shall the House concur in the Senate Proposal of Amendment?

NOTICE CALENDAR

Favorable with Amendment

S. 114

An act relating to enhancing mental health parity.

Rep. Fisher of Lincoln, for the Committee on Human Services, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  8 V.S.A. § 4089b is amended to read:

(a)  It is the goal of the general assembly that treatment for mental health conditions be recognized as an integral component of health care, that health insurance plans cover all necessary and appropriate medical services without imposing practices that create barriers to receiving appropriate care, and that integration of health care be recognized as the standard for care in this state.

(a)(b) As used in this section:

(1) "Health insurance plan" means any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402(7). Health insurance plan includes any health benefit plan offered or administered by the state, or any subdivision or instrumentality of the state.

(2) "Mental health condition" means any condition or disorder involving mental illness or alcohol or substance abuse that falls under any of the diagnostic categories listed in the mental disorders section of the international classification of disease, as periodically revised.

(3) "Rate, term or condition" means any lifetime or annual payment limits, deductibles, copayments, coinsurance and any other cost-sharing requirements, out-of-pocket limits, visit limits, and any other financial component of health insurance coverage that affects the insured.

(b)(c)  A health insurance plan shall provide coverage for treatment of a mental health condition and shall:

(1)  not establish any rate, term, or condition that places a greater financial burden on an insured for access to treatment for a mental health condition than for access to treatment for a physical other health conditions;

(2) not exclude from its network or list of authorized providers any licensed mental health or substance abuse provider located within the geographic coverage area of the health benefit plan if the provider is willing to meet the terms and conditions for participation established by the health insurer; and

(3) make any deductible or out-of-pocket limits required under a health insurance plan comprehensive for coverage of both mental health and physical health conditions.

 (c)(d)(1)(A) A health insurance plan that does not otherwise provide for management of care under the plan, or that does not provide for the same degree of management of care for all health conditions, may provide coverage for treatment of mental health conditions through a managed care organization provided that the managed care organization is in compliance with the rules adopted by the commissioner that assure that the system for delivery of treatment for mental health conditions does not diminish or negate the purpose of this section.  In reviewing rates and forms pursuant to section 4062 of this title, the commissioner shall consider the compliance of the policy with the provisions of this section.

(B)  The rules adopted by the commissioner shall assure that:

(i)  timely and appropriate access to care is available; that

(ii)  the quantity, location and specialty distribution of health care providers is adequate; and that

(iii)  administrative or clinical protocols do not serve to reduce access to medically necessary treatment for any insured;

(iv)  utilization review and other administrative and clinical protocols do not deter timely and appropriate care, including emergency hospital admissions;

(v)  in the case of a managed care organization which contracts with a health insurer to administer the insurer’s mental health benefits, the portion of a health insurer’s premium rate attributable to the coverage of mental health benefits is reviewed under sections 4062, 4513, 4584, or 5104 of this title to determine whether it is excessive, inadequate, unfairly discriminatory, unjust, unfair, inequitable, misleading or contrary to the laws of this state;

(vi)  the health insurance plan is consistent with the Blueprint for Health with respect to mental health conditions, as determined by the commissioner under section 9414(b)(2) of Title 18;

(vii)  a quality improvement project is completed annually as a joint project between the health insurance plan and its mental health managed care organization to implement policies and incentives to increase collaboration among providers that will facilitate clinical integration of services for medical and mental health conditions, including:

(I)  evidence of how data collected from the quality improvement project are being used to inform the practices, policies, and future direction of care management programs for mental health conditions; and

(II)  demonstration of how the quality improvement project is supporting the incorporation of best practices and evidence-based guidelines into the utilization review of mental health conditions;

(viii)  an up-to-date list of active mental health care providers in the plan’s network who are available to the general membership is available on the health insurer’s and managed care organization’s websites and provided to consumers upon request; and

(ix)  the health insurers and managed care organizations make accessible to consumers the toll-free telephone number for the Vermont health care administration’s consumer protection help line.

(C)  Prior to the adoption of rules pursuant to this subdivision, the commissioner shall consult with the commissioner of mental health and the task force established pursuant to subsection (h) of this section concerning:

(i)  developing incentives and other measures addressing the availability of providers of care and treatment for mental health conditions, especially in medically underserved areas;

(ii)  incorporating nationally recognized best practices and evidence-based guidelines into the utilization review of mental health conditions; and

(iii)  establishing benefit design, infrastructure support, and payment methodology standards for evaluating the health insurance plan’s consistency with the Blueprint for Health with respect to the care and treatment of mental health conditions.

(2)  A managed care organization providing or administering coverage for treatment of mental health conditions on behalf of a health insurance plan shall comply with this section, sections 4089a and 4724 of this title, and section 9414 of Title 18, with rules adopted pursuant to those provisions of law, and with all other obligations, under Title 18 and under this title, of the health insurance plan and the health insurer on behalf of which the review agent is providing or administering coverage.  A violation of any provision of this section shall constitute an unfair act or practice in the business of insurance in violation of section 4723 of this title.

(3)  A health insurer that contracts with a managed care organization to provide or administer coverage for treatment of mental health conditions is fully responsible for the acts and omissions of the managed care organization, including any violations of this section or a rule adopted pursuant to this section.

(4)  In addition to any other remedy or sanction provided for by law, if the commissioner, after notice and an opportunity to be heard, finds that a health insurance plan or managed care organization has violated this section or any rule adopted pursuant to this section, the commissioner may:

(A)  Assess a penalty on the health insurer or managed care organization under section 4726 of this title;

(B)  Order the health insurer or managed care organization to cease and desist in further violations;

(C)  Order the health insurer or managed care organization to remediate the violation, including issuing an order to the health insurer to terminate its contract with the managed care organization; and

(D)  Revoke or suspend the license of a health insurer or managed care organization, or permit continued licensure subject to such conditions as the commissioner deems necessary to carry out the purposes of this section.

(5)  As used in this subsection, the term “managed care organization” includes any of the following entities that provide or administer the coverage of mental health benefits on behalf of a health insurance plan:

(A)  a review agent as defined in section 4089a of this title;

(B)  a health insurer or an affiliate of a health insurer as defined in section 9402 of Title 18;

(C)  a managed care organization or an affiliate of a managed care organization as defined in section 9402 of Title 18; and

(D)  a person or entity that should be licensed as a managed care organization.

(d)(e)  Notwithstanding the provisions of subdivision (c)(1) of this section, a A health insurance plan shall be construed to be in compliance with this section if at least one choice for treatment of mental health conditions provided to the insured within the plan has rates, terms and conditions that place no greater financial burden on the insured than for access to treatment of physical other health conditions. The commissioner may disapprove any plan that the commissioner determines to be inconsistent with the purposes of this section.

(e)(f) To be eligible for coverage under this section the service shall be rendered:

(1) For treatment of mental illness:

(A) by a licensed or certified mental health professional; or

(B) in a mental health facility qualified pursuant to rules adopted by the secretary of human services or in an institution, approved by the secretary of human services, that provides a program for the treatment of a mental health condition pursuant to a written plan. A nonprofit hospital or a medical service corporation may require a mental health facility or licensed or certified mental health professional to enter into a contract as a condition of providing benefits.

(2) For treatment of alcohol or substance abuse:

(A) by a substance abuse counselor or other person approved by the secretary of human services based on rules adopted by the secretary that establish standards and criteria for determining eligibility under this subdivision; or

(B) in an institution, approved by the secretary of human services, that provides a program for the treatment of alcohol or substance dependency pursuant to a written plan.

(f)(g)  On or before July 15 of each year, health insurance companies doing business in Vermont, and whose individual share of the commercially-insured Vermont market, as measured by covered lives, comprises at least five percent of the commercially-insured Vermont market, shall file with the commissioner, in accordance with standards, procedures, and forms approved by the commissioner:

(1) A report card on the health insurance plan's performance in relation to quality measures for the care, treatment, and treatment options of mental health and substance abuse conditions covered under the plan, pursuant to standards and procedures adopted by the commissioner by rule, and without duplicating any reporting required of such companies pursuant to Rule 10 of the division of health care administration, "Quality Assurance Standards and Consumer Protections for Managed Care Plans," and regulation 95-2, "Mental Health Review Agents," of the division of insurance, as amended, including:

(A) the discharge rates from inpatient mental health and substance abuse care and treatment of insureds;

(B) the average length of stay and number of treatment sessions for insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(C) the percentage of insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(D) the number of insureds denied mental health and substance abuse care and treatment;

(E) the number of denials appealed by patients reported separately from the number of denials appealed by providers;

(F) the rates of readmission to inpatient mental health and substance abuse care and treatment for insureds with a mental health condition;

(G) the level of patient satisfaction with the quality of the mental health and substance abuse care and treatment provided to insureds under the health insurance plan; and

(H) any other quality measure established by the commissioner.

(2) [Repealed.]  The health insurance plan’s revenue loss and expense ratio relating to the care and treatment of mental health conditions covered under the health insurance plan.  The expense ratio report shall list amounts paid in claims for services and administrative costs separately.

 (g)(h)  The commissioner shall establish a task force to develop performance quality measures, and address oversight issues for managed behavioral health care organizations, and review the results of any quality improvement projects not otherwise confidential or privileged, undertaken by managed care organizations for mental health and substance abuse care and treatment under subdivision (d)(1)(A)(vii) of this section and section 9414(i) of Title 18.  The task force shall report to the senate committees on health and welfare of the senate and the house of representatives committees on health care and on human services on or before January 15 of each year with a report on the activities and recommendations of the task force.  The task force shall include the following:

(1)  the commissioner of developmental and mental health services or a designee;

(2)  the director of the office of Vermont health access or a designee;

(3)  the commissioner of banking, insurance, securities, and health care administration or a designee;

(4)  the deputy commissioner of the department of health for alcohol and drug abuse programs or a designee;

(4)(5)  fourteen additional members appointed by the commissioner of banking, insurance, securities, and health care administration, including:

(A)  four representatives of the health insurance and behavioral managed care organization industry;

(B)  two consumers, after consultation with the health care ombudsman;

(C)  one psychologist, after consultation with the Vermont psychological association;

(D)  one psychiatrist, after consultation with the Vermont psychiatric association;

(E)  one social worker, after consultation with the National Association of Social Workers, Vermont Chapter;

(F)  one mental health counselor, after consultation with the Vermont mental health counselors association;

(G)  one drug and alcohol counselor, after consultation with the Vermont association of drug and alcohol counselors;

(H)  one representative from a consumer or citizen's organization;

(I)  one representative from the business community; and

(J)  one representative of community mental health centers.

Sec. 2.  18 V.S.A. § 9414(g) is amended to read:

(g)(1)  If In addition to any other remedy or sanction provided by law, after notice and an opportunity to be heard, if the commissioner determines that a managed care organization has violated or failed to comply with any of the provisions of this section or any rule adopted pursuant to this section, the commissioner may:

(A)  sanction the violation or failure to comply as provided in Title 8, including sanctions provided by or incorporated in sections 5108 and 5109 of Title 8 and section 4726 of Title 8, and may use any information obtained during the course of any legal or regulatory action against a managed care organization;

(B)  order the managed care organization to cease and desist in further violations; and

(C)  order the managed care organization to remediate the violation, including issuing an order to the managed care organization to terminate its contract with any person or entity which administers claims or the coverage of benefits on behalf of the managed care organization.

(2)  A managed care organization that contracts with a person or entity to administer claims or provide coverage of health benefits is fully responsible for the acts and omissions of such person or entity.  Such person or entity shall comply with all obligations, under this title and Title 8, of the health insurance plan and the health insurer on behalf of which the such person or entity is providing or administering coverage.

(3)  A violation of any provision of this section or a rule adopted pursuant to this section shall constitute an unfair act or practice in the business of insurance in a violation of section 4723 of Title 8.

Sec. 3.  18 V.S.A. § 9414(i) is added to read:

(i)  Upon review of the managed care organization’s clinical data, or after consideration of claims or other data, the commissioner may:

(1)  identify quality issues in need of improvement; and

(2)  direct the managed care organization to propose quality improvement initiatives to remediate those issues.

Sec. 4.  EFFECTIVE DATE; LEGISLATIVE INTENT; APPLICABILITY

(a)  This act shall take effect upon passage.

(b)  The provisions of 8 V.S.A. § 4089b(d)(2) and (3), and 18 V.S.A. § 9414(g)(2) and (3) are intended to clarify existing law.  The remedies provided for in 8 V.S.A. § 4089b(d)(4), and 18 V.S.A. § 9414(g)(1) shall apply to legal or regulatory violations that occur before and after passage of this act.

(Committee vote: 10-1-0)

(For text see Senate Journal 3/19/08 – P. 352 )

S. 168

An act relating to operating a motor vehicle under the influence of alcohol or drugs.

Rep. Lippert of Hinesburg, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 1130a is added to read:

§ 1130A.  PERMITTING UNDULY DANGEROUS PERSON TO OPERATE

(a)    No person shall knowingly and voluntarily permit a motor vehicle owned by him or her or under his or her control to be operated by a person:

(1)  whom the person permitting the operation knows or should know is under the influence of alcohol or drugs; or

(2)  whose license or privilege to operate a motor vehicle has been revoked, suspended or refused by the commissioner of motor vehicles for a violation of subsections 1091(b) or section 1201 or a suspension under section 1205 of this title, if the person permitting the operation knows of the revocation, suspension, or refusal.

(b)  Except as provided in subsection (c) of this section, a person who violates subsection (a) of this section shall be fined not more than $1,000.00.

(c)  A person who violates subsection (a) of this section shall be fined not more than $5,000.00 or imprisoned not more than two years, or both, if the person who was permitted to operate the vehicle causes an accident which results in death or serious bodily injury as defined in 13 V.S.A.§ 1021(2) to any person other than the operator.  The provisions of this subdivision do not limit or restrict prosecutions for manslaughter.

(d)  For purposes of this section, a person may assert as an affirmative defense a necessity defense, including that threat or coercion was used by the operator to obtain permission from the person to operate the motor vehicle.

Sec. 2.  23 V.S.A. § 1200 is amended to read:

§ 1200.  DEFINITIONS

As used in this subchapter,:

* * *

(2)  “Drug” means:

(A)  a regulated drug as defined in section 4201 of Title 18; or

(B)  any substance or combination of substances, other than alcohol, which affects the nervous system, brain, or muscles of a person as to noticeably and appreciably impair a person’s ability to safely drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of his or her faculties, using reasonable care, would drive a similar vehicle under like conditions.

* * *

Sec. 3.  ALCOHOL IGNITION INTERLOCKS STUDY:  MULTIPLE DUI

          AND HIGH BLOOD-ALCOHOL-CONTENT FIRST OFFENSE DUI

(a)  The Vermont sentencing commission shall study the issue of implementing a system of alcohol ignition interlocks in Vermont for persons with multiple DUI convictions, as well as for first time DUI offenders with high blood-alcohol-content levels at the time of arrest.  The commission may consult with any other persons and entities able to assist the study, and shall:

(1)  gather and analyze information about alcohol ignition interlock systems, and review current practices regarding use of the systems in other states;

(2)  study the feasibility of having the costs of alcohol ignition interlock systems be borne by DUI offenders;

(3)  study the net costs of implementing an alcohol ignition interlock system in Vermont, including the availability of federal funding for that purpose; and

(4)  study the advisability and feasibility of implementing a system of conditional drivers licenses in Vermont.

(b)  The commission shall report its findings and make recommendations to the senate and house committees on judiciary no later than December 15, 2008. 

Sec. 4.  LAW ENFORCEMENT ROADSIDE ACCESS TO DEPARTMENT

          OF CORRECTION RECORDS

The department of public safety, the department of corrections, and the department of motor vehicles shall collaborate to develop and implement procedures allowing law enforcement officers roadside access to department of corrections records, including records regarding probation, parole, and conditions of release.  The departments shall make a report to the senate and house committees on judiciary no later than December 15, 2008.

(Committee vote: 9-0-2)

(For text see Senate Journal 3/13/08 – P. 308 )

S. 171

An act relating to discharge of a mortgage by an attorney.

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

Sec. 1.  27 V.S.A. § 470 is added to read:

§ 470.  VALIDATION OF MORTGAGE DISCHARGE ON

  ONE-TO-FOUR-FAMILY RESIDENTIAL PROPERTY

(a)  Subject to the provisions of subsection (b) of this section, a mortgage discharge executed on behalf of a banking or lending institution with respect to a mortgage encumbering a one-to-four-family residential real property, including a residential unit in a condominium or in a common interest community as defined in Title 27A, that is not valid because it is not executed by or is not issued by or in the name of the record holder of the mortgage, shall be valid as if it had been issued or executed by the record holder of the mortgage if:

(1)  No person has within three years after the discharge is recorded brought an action challenging the validity of the discharge and recorded a copy of the complaint in the land records of the town where the discharge is recorded; and

(2)  An affidavit is recorded that is dated more than three years after the recording date of the mortgage discharge and contains the following:

(A)  A statement that the affiant has been the record owner of the real property described in the mortgage for at least two years prior to the date of the affidavit.

(B)  The recording information for the mortgage, any assignments, and the release.

(C)  A statement that, since the date of the recording of the release, the affiant has received no demand for payment of all or any portion of the debt secured by the mortgage and has received no notice or communication that would indicate that all or any portion of the mortgage debt remains due or owing.

(D)  A statement that, to the best of the affiant’s knowledge and belief, the mortgage has been paid in full.

(b)  The provisions of this section shall not apply to any release obtained by fraud or forgery.

Sec. 2.  27 V.S.A. § 141 is amended to read:

§ 141.  EXECUTION AND ACKNOWLEDGMENT OF CONVEYANCE

(a)  A homestead or an interest therein shall not be conveyed by the owner thereof, if married, except by way of mortgage for the purchase money thereof given at the time of such purchase, unless the wife or husband joins in the execution and acknowledgment of such conveyance.  A conveyance thereof, or of an interest therein, not so made and acknowledged, shall be inoperative so far only as relates to the homestead provided for in this chapter.

(b)  When a mortgagee takes an accruing mortgage, the only debt which shall be secured thereby or become a lien upon the property described therein shall be the debt described in the mortgage and existing at the time of its execution, and any subsequent direct indebtedness of the mortgagor to such mortgagee; provided, that when the mortgage includes a homestead, the written consent of the wife or husband of the mortgagor to the creation of such subsequent direct indebtedness shall be required.

(c)  If a mortgaged property includes a homestead, any amendment to the mortgage which increases the amount of the indebtedness secured thereby or extends the date of maturity thereof, shall be executed and acknowledged by both spouses.  The failure to obtain the written spousal consent shall not affect the validity or priority of such amendment, but the lien created thereby shall be inoperative so far only as relates to the rights of homestead of such spouse in the mortgaged premises under chapter 3 of this title, provided the amendment is challenged by such spouse before his or her homestead interest is otherwise extinguished.

(d)  Notwithstanding anything to the contrary in this section, a spouse or civil union partner may convey his or her respective homestead interest to the other spouse or civil union partner prior to the time the homestead right vests, thereby divesting the grantor of any homestead interest in the property.  A conveyance of homestead property between spouses or civil union partners shall be deemed to include a conveyance of any homestead interest.  This section shall apply retroactively, except that it shall not affect a suit begun or pending as of July 1, 2008.

Sec. 3.  27 V.S.A. § 348 is amended to read:

 

§ 348.     INSTRUMENTS CONCERNING REAL PROPERTY LACKING

               STATEMENT OF CONSIDERATION, OR WITNESSES OR                                    ACKNOWLEDGMENTS, VALIDATED

(a)  When an instrument of writing shall have been on record in the office of the clerk in the proper town for a period of 15 years, and there is a defect in the instrument because it omitted to state any consideration therefor or was not sealed, witnessed, acknowledged, validly acknowledged, or because a license to sell was not validly issued or is defective, the instrument shall, from and after the expiration of 15 years from the filing thereof for record, be valid.  Nothing herein shall be construed to affect any rights acquired by grantees, assignees or encumbrancers under the instruments described in the preceding sentence, nor shall this section apply to conveyances or other instruments of writing, the validity of which is brought in question in any suit now pending in any courts of the state.

(b)  Notwithstanding subsection (a) of this section, any deed, mortgage, lease, power of attorney, release, discharge, assignment, or other instrument made for the purpose of conveying, leasing, mortgaging, or affecting any interest in real property which contains any one or more of the following errors is valid unless, within three years after the instrument is recorded, an action challenging its validity is commenced, and a copy of the complaint is recorded in the land records of the town where the instrument is recorded:

(1)  The instrument contains a defective acknowledgment.

(2)  In the case of a conveyance by a corporation, limited liability company, partnership, limited partnership, or limited liability partnership, or by any other entity authorized to hold and convey title to real property within this state, the instrument designated such entity as the grantor but was signed or acknowledged by an individual in the individual capacity of such person, or fails to disclose the authority of the individual who executes and acknowledges the instrument.

 (3)  The instrument contains an incorrect statement of the date of execution, or contains an execution date or other date that is later than the date of the recording.  In case of such conflict the date of recording prevails.

 (4)  The instrument does not contain a statement of consideration.

(c)  Notwithstanding the provisions of subsection (a) of this section, any deed, mortgage, lease, power of attorney, release, discharge, assignment, or other instrument made for the purpose of conveying, leasing, mortgaging, or affecting any interest in real property which is executed pursuant to a recorded power of attorney and contains one or more of the following errors or omissions is valid as if it had been executed without the error or omission:

(1)  The instrument was executed by an attorney-in-fact but was signed or acknowledged by the attorney-in-fact without reference to his or her capacity.

(2)  The instrument was executed by an attorney-in-fact but does not reference the power of attorney.

(3)  The power of attorney was effective at the time the instrument was executed but is recorded after the instrument is recorded.

(d)  A release, discharge, or assignment of mortgage interest executed by a commercial lender with respect to a one-to-four-family residential real property, including a residential unit in a condominium or in a common interest community as defined in Title 27A, which recites authority to act on behalf of the record holder of the mortgage under a power of attorney but where the power of attorney is not of record, shall have the same effect as if executed by the record holder of the mortgage unless, within two years after the instrument is recorded, an action challenging the release, discharge or assignment is commenced and a copy of the complaint is recorded in the land records of the town where the release, discharge, or assignment is recorded. This subsection shall not apply to releases, discharges, or assignments obtained by fraud or forgery.

Sec. 4.  9 V.S.A. § 4005a is added to read:

§ 4005a.  FUND HELD IN TRUST; COMMINGLING; NO EFFECT ON

                TITLE TO REAL PROPERTY

(a)  For the purposes of this section:

(1)  “Claim” means any valid claim for materials furnished or services rendered in the construction, repair, remodeling, improvement, or renovation of any building or structure for which the claimant has a lien or the right to claim a lien.

(2)  “Express trust” means funds that have been paid by an owner, for or in connection with services, labor, or materials used in an improvement of real property, which are to be held by a contractor or subcontractor, in express trust, for those services, labor, or materials.  Any such contractor or subcontractor who accepts money from any owner or contractor shall become the trustee of the express trust that is created pursuant to this section.  The amounts received by such contractor or subcontractor under or in connection with each building project shall be a separate trust and the contractor or subcontractor, or any successor or assign or both of such contractor or subcontractor that hold such trust funds, shall be a trustee thereof.  These funds are not required to be held in any separate account by a contractor or subcontractor.  Such trust shall be effective against and shall have priority over any unsecured interest of a party seeking payment from such contractor or subcontractor for claims other than those that are due and owing by reason of the specific building project for which the trust was created, whether such creditors are foreign attachment or other judicial lien creditors, a trustee in bankruptcy or similar creditors or representatives or creditors of the contractor or subcontractor.

(b)  Funds held in express trust are not required to be held in any separate account by a contractor or subcontractor.

(c)  No express trust shall be required for a federal, state, or municipal project.

(d)  The amount payable to any contractor or subcontractor under any contract for the construction, repair, remodeling, improvement, or renovation of any building or structure shall, upon receipt by such contractor or subcontractor, be held in express trust by such contractor or subcontractor for the payment of all claims that are due and owing, or to become due and owing, by such contractor or subcontractor by reason of such construction, repair, remodeling, improvement, or renovation.

(e)  Any amount required to be held in express trust under this section shall be applied to the payment of the corresponding claims specified in this section.

(f)  Nothing herein shall be construed to create a lien on real property.  The existence of an express trust under this section shall not prohibit the filing or enforcement of a lien against the affected real property pursuant to chapter 51 of Title 9 by any claimant.  A priority lien of a secured lender shall not be subordinate to an express trust.

(g)  In the case of an express trust which is not held by a corporation, limited liability partnership, or limited liability company, liability for sums due under this section shall only attach to the principal or head of the company which holds the funds under the express trust.

(Committee vote: 9-0-2)

(For text see Senate Journal 4/11/08 – P. 432 )

S. 246

An act relating to electronic access to criminal and family court records.

Rep. Lippert of Hinesburg, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. § 5 is added to read:

§ 5.  DISSEMINATION OF ELECTRONIC CASE RECORDS

(a)  The court shall not permit public access via the internet to criminal case records or family court case records.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, Internet access to criminal case records for criminal justice purposes, as defined in section 2056a.

(b)  This section shall not be construed to prohibit the court from providing electronic access to:

(1)  court schedules or opinions of the district court; or

(2)  state agencies in accordance with data dissemination contracts entered into under Rule 6 of the Vermont Rules of Electronic Access to Court Records.

(c)  This section shall sunset on June 30, 2010.

(Committee vote: 8-0-3)

(For text see Senate Journal 3/11/08 – P. 282-288 )

S. 281

An act relating to end-of-life care and pain management.

Rep. Frank of Underhill, for the Committee on Human Services, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  STUDY AND REPORT ON PALLIATIVE CARE, END-OF-LIFE CARE, AND PAIN MANAGEMENT

(a)  The office of the attorney general, in cooperation with the departments of health and of disabilities, aging, and independent living, shall convene and lead a group of stakeholders to discuss and make recommendations on legislative and non-legislative solutions for improving:

(1)  palliative care,

(2)  end-of-life care,

(3)  management of chronic pain, and

(4)  access to these services for children.

(b)  Participants shall include:

(1)  the Vermont Program for Quality in Health Care;

(2)  the Hospice and Palliative Care Council of Vermont;

(3)  the Vermont health care ombudsman;

(4)  the Vermont long-term care ombudsman;

(5)  Patient Choices at End of Life – Vermont;

(6)  the Vermont Alliance for Ethical Healthcare;

(7)  the Community of Vermont Elders;

(8)  the Vermont Ethics Network;

(9)  the Vermont Health Care Association;

(10)  the Vermont Association of Hospitals and Health Systems;

(11)  the Vermont Medical Society;

(12)  the Vermont Coalition on Disability Rights;

(13)  the American Cancer Society;

(14)  AARP Vermont;

(15)  one representative appointed by the speaker of the house and one senator appointed by the president pro tempore; and

(16)  other interested stakeholders.

(c)  The group shall consider:

(1)  available data and studies from existing sources and evaluate their utility for driving improvements in palliative care, end-of-life care, and pain management services across settings in this state;

(2)  the value and feasibility of conducting ongoing studies or preparing an annual report card, or both;

(3)  recommendations for improving ongoing coordination of activities directed toward improving palliative care, end-of-life care, and pain management services throughout the state;

(4)  how best to protect the interests of persons who:

(A)  have a terminal illness,

(B)  are receiving hospice care, or

(C)  are suffering chronic pain;

(5)  how to advance the goal of improving health care services for children with painful or life-threatening medical conditions, including:

(A)  the current availability of insurance coverage for pediatric palliative care services and treatment for chronic pain, and

(B)  avenues for increasing children’s access to care;

(6)  recommendations for improving methods of informing consumers about options in this state for end-of-life care, palliative care, and management of chronic pain, and about the importance of having an advance directive, including means to ensure that:

(A)  persons suffering from chronic pain are aware of their right to request or reject the use of all medications, and

(B)  persons with a terminal illness are informed about their end-of-life care options;

(7)  recommendations on the adoption and implementation of statewide standards on pain management for each of the health care professions licensed in this state; and

(8)  such other issues as the group determines necessary and appropriate.

(d)  No later than January 15, 2009, the stakeholders’ group shall provide a written progress report on its initial findings and recommendations, including the appropriateness of an annual report card, to the house committees on human services and on health care and the senate committee on health and welfare.  No later than December 15, 2009, the group shall provide a final report on its findings and recommendations, including recommendations on the group’s continued duration and future activities, to the house committees on human services and on health care and the senate committee on health and welfare.

(Committee vote: 11-0-0)

Rep. Hunt of Essex, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Human Services and when further amended follows:

In Sec. 1 by adding a new (e) to read:

(e) Participants of the stakeholders group established by this act who are members of the General Assembly are entitled to receive per diem compensation and reimbursement of expenses as provided by 2  V.S.A. §406.

(Committee vote: 9-1-1)

(For text see Senate Journal 1/31/08 – P. 84 )

S. 283

An act relating to managed care organizations and the blueprint for health.

Rep. Chen of Mendon, for the Committee on Health Care, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. § 9414(a)(1), (b), and (e) are amended to read:

(a)  The commissioner shall have the power and responsibility to ensure that each managed care organization provides quality health care to its members, in accordance with the provisions of this section.

(1)  In determining whether a managed care organization meets the requirements of this section, the commissioner shall annually review and examine, in accordance with subsection (e) of this section, the organization’s administrative policies and procedures, quality management and improvement procedures, utilization management, credentialing practices, members' rights and responsibilities, preventive health services, medical records practices, grievance and appeal procedures, member services, financial incentives or disincentives, disenrollment, provider contracting, and systems and data reporting capacities.  The commissioner may establish, by rule, specific criteria to be considered under this section.

(b)(1)  A managed care organization shall assure that the health care services provided to members are consistent with prevailing professionally recognized standards of medical practice. 

(2)  A managed care organization shall establish a chronic care program as needed to implement the blueprint for health established in chapter 13 of this title.  The program shall include:

(A)  appropriate benefit plan design;

(B)  informational materials, training, and follow-up necessary to support members and providers; and

(C)  payment reform methodologies.

(3)  Each managed care organization shall have procedures to assure availability, accessibility and continuity of care, and ongoing procedures for the identification, evaluation, resolution, and follow-up of potential and actual problems in its health care administration and delivery.

(e)  The commissioner shall evaluate review a managed care organization's performance under the requirements of this section at least once every three years and more frequently as the commissioner deems proper.  If upon review the commissioner determines that the organization’s performance with respect to one or more requirements warrants further examination, the commissioner shall conduct a comprehensive or targeted examination of the organization’s performance.  The commissioner may designate another organization to conduct any evaluation under this subsection.  Any such independent designee shall have a confidentiality code acceptable to the commissioner, or shall be subject to the confidentiality code adopted by the commissioner under subdivision (f)(3) of this section.  In conducting an evaluation under this subsection, the commissioner or the commissioner's designee shall employ, retain, or contract with persons with expertise in medical quality assurance.

Sec. 2.  8 V.S.A. § 4088f is added to read:

§ 4088f.  HEALTH INSURANCE AND THE BLUEPRINT FOR HEALTH

(a)  A health insurance plan shall be offered, issued, and administered consistent with the blueprint for health established in chapter 13 of Title 18, as determined by the commissioner.

(b)  As used in this section, “health insurance plan” means any individual or group health insurance policy, any hospital or medical service corporation or health maintenance organization subscriber contract, or any other health benefit plan offered, issued, or renewed for any person in this state by a health insurer, as defined in section 9402 of Title 18.  The term shall include the health benefit plan offered by the state of Vermont to its employees and any health benefit plan offered by any agency or instrumentality of the state to its employees.  The term shall not include benefit plans providing coverage for specific disease or other limited benefit coverage unless so directed by the commissioner.

Sec. 3.   SUPPORT OF BLUEPRINT integrated early

              implementation PILOT Programs

(a)  As used in this section, “health insurer” means a health insurance company doing business in Vermont whose individual share of the commercially insured Vermont market, as measured by covered lives, comprises at least five percent of the commercially insured Vermont market.

(b)  The blueprint director shall establish a pilot design and evaluation committee to assist with design, implementation, and evaluation of the integrated early implementation pilot programs, as defined in section 7 of No. 71 of the Acts of  2007.  The committee shall:

(1)  work collaboratively with the blueprint director to accomplish the provisions in subsections (c) through (g) of this section; and

(2)  include a representative of each of the participating health insurers; a participating provider from each pilot community; a representative of the Vermont department of health; a representative of the office of Vermont health access; a representative of the department of banking, insurance, securities, and health care administration; a naturopathic physician; a representative of the business community; and a representative of the Vermont Medical Society.

(c)  Implementation of the first pilot program shall begin no later than July 1, 2008.  Implementation of the second pilot program shall begin no later than October 1, 2008.  Implementation of the third pilot program shall begin no later than January 1, 2009.

(d)  No later than May 31, 2008, health insurers and the office of Vermont health access shall commit in writing to participation in the three integrated early implementation pilot projects as described in section 7 of No. 71 of the Acts of 2007 and as further specified by the provisions of this section.  Such commitment shall include agreement to:

(1)  provide financial support for a five-member community care team in each of the three integpilrated early implementation pilot program communities established pursuant to subsection 7(f) of No. 71 of the Acts of 2007.  The department of health, health insurers, and the office of Vermont health access shall each contribute equal shares of such financial support for the community care teams, with the exception that MVP Healthcare shall contribute one half of that share;

(2)  provide financial support for payment reform for providers in practices that are participating as part of the three integrated early implementation pilot programs as referenced in subsections 7(e) and 7(g) of No. 71 of the Acts of 2007;

(3)  provide claims data-sharing for evaluation of the effectiveness of these integrated pilot programs as referenced in subsections 7(c) and 7(e) of Act 71 of No. 71 of the Acts of 2007; and

(4)  actively participate in program design, implementation, and evaluation activities.

(e)  No later than May 31, 2008, the blueprint director shall adopt designs for the financial support models in subdivisions (d)(1) and (d)(2) of this section and for the plan to evaluate healthcare process quality, including targets for key outcomes to be achieved by the pilots.

(f)  By January 1, 2010, as part of the blueprint annual report, the blueprint director shall include a report on integrated pilot program implementation and preliminary evaluation findings.

(g)  No later than six months after the third integrated pilot has completed 12 months of clinical operations, the blueprint director and the pilot design and evaluation committee shall assess whether there is sufficient clinical and financial gain from these types of programs to move forward with statewide implementation.

(1)  The blueprint director shall provide a final evaluation report to the senate committee on health and welfare, the house committee on health care, and the commission on health care reform.

(2)  If evidence supports statewide implementation, the final evaluation report shall include recommendations to achieve this goal.

(h)  If the commissioner of banking, insurance, securities, and health care administration determines that a health insurer is not participating in an adequate and appropriate manner, as determined by the commissioner, in the activities described in this section, the commissioner, in addition to any other remedy or sanction provided for by law, may order the health insurer to participate in such blueprint initiatives and take such other actions as the commissioner determines necessary to carry out the purposes of this section.

Sec. 4.  REPEAL

Sec. 3 of this act, relating to blueprint integrated early implementation pilot programs, shall be repealed on July 1, 2012.

Sec. 5.  18 V.S.A. § 1120 is amended to read:

§ 1120.  DEFINITIONS

As used in this subchapter,:

(1)  “Child care facility” means a child care facility or family day care home licensed or registered under chapter 35 of Title 33, unless exempted by rule adopted under section 1123 of this title.

(2)  “school” “School” means a public or independent prekindergarten, kindergarten, elementary or secondary school or any postsecondary school as defined in 16 V.S.A. § 176(b), unless exempted by rule adopted pursuant to section 1123 of this title.

Sec. 6.  18 V.S.A. § 1121 is amended to read:

§ 1121.  IMMUNIZATIONS REQUIRED PRIOR TO ATTENDING

              SCHOOL AND CHILD CARE FACILITIES

(a)  No person may enroll as a student in a Vermont school, regardless of whether the student has been enrolled in the school during a previous school year, unless the appropriate school official has received a record or certificate of immunization issued by a licensed physician health care practitioner or a health clinic that the person has received required immunizations appropriate to age as specified by the Vermont department of health.

(b)  No person may enroll or retain a child in a child care facility, regardless of whether the child has been enrolled in the facility during a previous year, unless the facility has received a record or certificate of immunization issued by a licensed health care practitioner or a health clinic that the child has received required immunizations in the prior 12-month period appropriate to age as specified by the Vermont department of health.

Sec. 7.  18 V.S.A. § 1122 is amended to read:

§ 1122.  EXEMPTIONS

(a)  A person may remain in school or in the child care facility without a required immunization:

(1)  If the person, or in the case of a minor the person’s parent or guardian presents a written statement from a licensed physician health care practitioner, health clinic, or nurse that the person is in the process of being immunized.  The person may continue to attend school or the child care facility as long as the immunization process is being accomplished;

(2)  If a physician health care practitioner, licensed to practice in Vermont, certifies in writing that a specific immunization is or may be detrimental to the person’s health or is not appropriate;

(3)  If the person, or in the case of a minor the person’s parent or guardian states in writing that the person, parent, or guardian has religious beliefs or moral philosophical convictions opposed to immunization.

(b)  The health department may provide by rule for further exemptions to immunization based upon sound medical practice.

Sec. 8.  18 V.S.A. § 1123 is amended to read:

§ 1123.  IMMUNIZATION RULES AND REGULATIONS

The health department shall adopt rules for administering this subchapter.  Such rules shall be developed in consultation with the department of education shall establish rules for administering this subchapter with respect to immunization requirements for Vermont schools, and in consultation with the department for children and families with respect to immunization requirements for child care facilities.  Such rules shall establish which immunizations shall be required and the manner and frequency of their administration, and may provide for exemptions as authorized by this subchapter.

Sec. 9.  18 V.S.A. § 1124 is amended to read:

§ 1124.  ACCESS TO RECORDS

Appropriate health personnel, including school nurses, shall have access to student immunization records of anyone enrolled in Vermont schools or child care facilities, when access is required in the performance of official duties related to the immunizations required by this subchapter.  Access to student immunization records shall only be provided with the prior written consent of parents and students as required by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and any regulations adopted thereunder.

Sec. 10.  18 V.S.A. § 1126 is amended to read:

§ 1126.  NONCOMPLIANCE

The school board of each district, or the board of trustees of each independent school, or the chief executive officer of each post-secondary postsecondary school, or the director of each child care facility shall exclude from school or a child care facility any person not otherwise exempted under this subchapter who fails to comply with its provisions.  No person shall be excluded for failure to comply with the provisions of this subchapter unless there has been a notification by the appropriate school or child care facility authority to the person, or in the case of a minor to the person’s parent or guardian of the noncompliance with this subsection, and of their rights under section 1122 of this title.  In the event of exclusion, school officials or the director of the child care facility shall notify the department of health and contact the parents or guardians in an effort to secure compliance with the requirements of this subchapter so that the person may attend school or the child care facility.

Sec. 11.  18 V.S.A. § 1129 is amended to read:

§ 1129.  CHILDHOOD IMMUNIZATION REGISTRY

(a)  A health care provider shall report to the department all data regarding required immunizations of adults and of children under the age of 18 within seven days of the immunization, provided that required reporting of immunizations of adults shall commence within one month after the health care provider has established an electronic health records system and data interface pursuant to the e-health standards developed by the Vermont information technology leaders.  A health insurer shall report to the department all data regarding immunizations of adults and of children under the age of 18 at least quarterly.  The All data required pursuant to this subsection shall be reported in a form required by the department.

(b)  The department may use the data to create a registry of childhood immunizations.  Registry information regarding a particular adult shall be provided, upon request, to the adult, the adult’s health care provider, and the adult’s health insurer.  A minor child’s record also may be provided, upon request, to school nurses, and upon request and with written parental consent, to licensed day care providers, to demonstrate document compliance with Vermont immunization laws.  Registry information regarding a particular child shall be provided, upon request, to the child after the child reaches the age of majority and to the child’s parent, guardian, health insurer, and health care provider.  Registry information shall be kept confidential and privileged and may be shared only in summary, statistical, or other form in which particular individuals are not identified.

Sec. 12.  EFFECTIVE DATE

This act shall take effect July 1, 2008, except that Sec. 3 and this section shall take effect upon passage.

(Committee vote: 9-2-0)

(For text see Senate Journal 1/31/06 – P. 84 )

S. 311

An act relating to the use value appraisal program.

Rep. Randall of Troy, for the Committee on Fish, Wildlife and Water Resources, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that the use value appraisal program:

(1)  Continues to achieve the goals of the program although the goal of protecting natural ecological systems could be better met by amending the 20‑percent rule to allow for more flexibility in the enrollment of ecological areas, such as rare or exemplary natural communities, riparian buffers, wetlands, vernal pools, and significant wildlife habitat;

(2)  Needs electronic coordination;

(3)  Appears to need appropriate staff increases at the division of property valuation and review and at the department of forests, parks and recreation;

(4)  Needs administrative streamlining;

(5)  Should provide consistent oversight between the agricultural and forest land programs;

(6)  Should generate more funding for sufficient administration of the program;

(7)  Has serious misperceptions about it in the minds of the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors that the state must lead an educational effort to correct.

(b)  Therefore, the general assembly intends that this act will improve this successful program.

* * * New Application at Time of Transfer of Ownership and Increase of the Application Fee * * *

Sec. 2.  32 V.S.A. § 3756(e) is amended to read:

(e)  Once a use value appraisal has been applied for and granted under this section, such appraisal shall remain in effect for subsequent tax years pursuant to the provisions of subsection (f) of this section, and until the property concerned is transferred to another owner or is no longer eligible under provisions of section 3752 or 3755 of this chapter, or due to a change of use or as otherwise provided in section 3757 of this chapter.  If enrolled property is transferred to another owner, the new owner shall be entitled to continue to have the eligible property appraised at its use value, provided the property remains eligible and provided the new owner shall elect the continuation of use value appraisal on the property transfer tax return at the time of transfer and, within 30 days after the property tax transfer return is received by the department, has applied to the director and paid the fees described in this subsection.  The grant of use value appraisals of agricultural forest land and farm buildings shall be recorded in the land records of the municipality by the clerk of the municipality.  The department of taxes may collect from applicants Applications shall include the fees specified in subdivision 1671(a)(6) or subsection 1671(c) of this title, and a fee of $25.00 for deposit in a special fund established and managed pursuant to subchapter 5 of chapter 7 of this title, and which. The fund shall be available as payment for the fees of the clerk of the municipality and for the improvement of the management of the program.

Sec. 3.  32 V.S.A. § 3757(e)(3) is amended to read:

(3)  of any transfer of ownership.  A transfer of ownership, alone, will not affect eligibility of the parcel, and no new maps will be required solely because of a transfer, but failure to provide maps, a new application, or transfer information to the division of property valuation and review within 30 days of a request being sent by certified mail by the director will result in removal of the parcel from the program.

Sec. 4.  PROPERTY TRANSFER TAX RETURN

The commissioner of taxes shall amend the property transfer tax return to include an election to continue eligible property in the use value appraisal program at the time of transfer to a new owner, as allowed under 32 V.S.A. § 3756(e).

* * * Increase Time and Flexibility to Inspect Forest Parcels * * *

Sec. 5.  32 V.S.A. § 3755(b)(3) and (c) are amended to read:

(3)  there has not been filed with the director an adverse inspection report by the department stating that the management of the tract is contrary to the forest or conservation management plan, or contrary to the minimum acceptable standards for forest or conservation management.  The management activity report of conformance with any management plan shall be on a form prescribed by the commissioner of forests, parks and recreation in consultation with the commissioner of taxes and shall include a detachable section signed by all the owners that shall contain the federal tax identification numbers of all the owners.  The section containing federal tax identification numbers shall not be made available to the general public, but shall be forwarded to the commissioner of taxes within 30 days after receipt and used for tax administration purposes.  If any owner shall satisfy the department that he or she was prevented by accident, mistake or misfortune from filing a management plan which is required to be filed on or before October 1 or an annual conformance a management activity report which is required to be filed on or before February 1 of the year following the year when the management activity occurred, the department may receive that management plan or annual conformance management activity report at a later date; provided, however, no management plan shall be received later than December 31 and no annual conformance management activity report shall be received later than March 1.

(c)  At intervals not to exceed five years, the The department of forests, parks and recreation shall audit periodically review the management plans and each year review the conformance management activity reports for each parcel of managed forest land qualified for use value appraisal.  Likewise, at that have been filed.  At intervals not to exceed five ten years, that department shall inspect each tract parcel of managed forest land qualified for use value appraisal to verify that the terms of the management plan have been carried out in a timely fashion.  If that department finds that the management of the tract is contrary to the conservation or forest management plan, or contrary to the minimum acceptable standards for conservation or forest management, it shall file with the owner, the assessing officials and the director an adverse inspection report within 30 days of the inspection.

Sec. 6.  32 V.S.A. § 3756(i) is amended to read:

(i)  The director shall remove from use value appraisal an entire parcel of managed forest land and notify the owner in accordance with the procedure in subsection (b) of this section when the department of forests, parks and recreation has not received a conformance management activity report or has received an adverse inspection report, unless the lack of conformance consists solely of the failure to make prescribed planned cutting.  In that case, the director may delay removal from use value appraisal for a period of one year at a time to allow time to bring the parcel into conformance with the plan.

* * * Allow for Management of Ecological Areas * * *

Sec. 7.  COMMISSIONER OF FORESTS, PARKS AND RECREATION

The commissioner of forests, parks and recreation shall amend the minimum standards of forest management to expand the eligibility of Site 4 land and to identify certain ecologically sensitive areas that will be allowed to be managed for other purposes than timber production, as follows:

(1)  A parcel may be eligible if no more than 20 percent of the acres to be enrolled are Site 4, plus open and not to be restocked within two years, plus ecologically significant areas designated by the department.  These acres need not be managed for timber production.

(2)  The commissioner, in partnership with the Vermont nongame and natural heritage program, should take note of and consider criteria developed by the American Tree Farm System and the Forest Stewardship Council in addition to the criteria submitted in testimony for determining ecologically sensitive areas.  The public shall be given an opportunity to comment on the amended standards.

(3)  If more than 20 percent of the acres to be enrolled are Site 4, plus open not to be restocked, plus ecologically significant not to be managed for timber production, landowners may apply to the commissioner for approval.  The plans and maps shall be reviewed by the county foresters of the county where the parcel is located.  In no situation shall a parcel be approved that does not provide for at least 80 percent of the land classified as Site 1, 2, or 3 to be managed for timber production. 

(4)  The amended standards shall be in effect on or before April 15, 2009.

(5)  The commissioner shall report to the house and senate committees on natural resources and energy and the house committees on fish, wildlife and water resources and agriculture on the changes in the standards on or before January 15, 2009.

* * * Flexibility in Updating Use Value on Town Grand List * * *

Sec. 8.  32 V.S.A. § 4111(e) and (g) are amended to read:

(e)  When the listers return the grand list book to the town clerk, they shall notify by first class mail, on which postage has been prepaid and which has been addressed to their last known address, all affected persons, listed as property owners in the grand list book of any change in the appraised value of such property or any change in the allocation of value to the homestead as defined under subdivision 5401(7) of this title or the housesite as defined under subdivision 6061(11) of this title, and also notify them of the amount of such change and of the time and place fixed in the public notice hereinafter provided for, when persons aggrieved may be heard.  No notice shall be required for a change solely to reflect a new use value set by the current use advisory board.  Notices shall be mailed at least 14 days before the time fixed for hearing.  Such personal notices shall be given in all towns and cities within the state, anything in the charter of any city to the contrary notwithstanding.  At the same time, the listers shall post notices in the town clerk’s office and in at least four other public places in the town or in the case of a city, in such other manner and places as the city charter shall provide, setting forth that they have completed and filed such book as an abstract and the time and place of the meeting for hearing grievances and making corrections.  Unless the personal notices required hereby were sent by registered or certified mail, or unless an official certificate of mailing of the same was obtained from the post office, in the case of any controversy subsequently arising it shall be presumed that the personal notices were not mailed as required.

(g)  A person who feels aggrieved by the action of the listers and desires to be heard by them, shall, on or before the day of the grievance meeting, file with them his or her objections in writing and may appear at such grievance meeting in person or by his or her agents or attorneys.  No grievance shall be allowed for a change solely to reflect a new use value set by the current use advisory board.  Upon the hearing of such grievance, the parties thereto may submit such documentary or sworn evidence as shall be pertinent thereto.

* * * Municipalities Allowed to Enroll Land in Other Municipalities * * *

Sec. 9.  32 V.S.A. § 3752(10) is amended to read:

(10)  “Owner” means the person who is the owner of record of any land, provided that a municipality shall not be an owner for purposes of this subchapter.  When enrolled land is mortgaged, the mortgagor shall be deemed the owner of the land for the purposes of this subchapter, until the mortgagee takes possession, either by voluntary act of the mortgagor or foreclosure, after which the mortgagee shall be deemed the owner.

Sec. 10.  32 V.S.A. § 3760 (a) is amended to read:

(a)(1)  Annually the state shall pay to each town municipality the amount necessary to limit its tax rate increase in the prior year due to the loss of municipal property tax revenue for that year based on use value of enrolled property as compared to municipal property tax revenue for that year based on fair market value of enrolled property, to zero.

(2)  The director of property valuation and review shall determine the amount of the available funds under this section to be paid to each town municipality, and a town municipality may appeal the director's decision in the same manner and under the same procedures as an appeal from a decision of a board of civil authority, as set forth in subchapter 2 of chapter 131 of this title.

(3)  On November 1 of each year, the director of property valuation and review shall pay to each municipality the amount calculated as described in this section.  If the appropriation for the year is insufficient to pay the full amount due to every town municipality under this subsection, payments in that year shall be made to such towns proportionately.

(4)  If the appropriation for the year is insufficient to pay the full amount due to any municipality for enrolled property owned by another municipality, the municipality in which the property is located may assess the other municipality and the other municipality shall pay the difference.

(5)  The director's calculation of payment amounts to municipalities shall be based on grand list values and total tax appropriations as submitted to the director for the prior year.

Sec. 11.  ELECTRONIC COORDINATION PROJECT AND REPORT

The department of information and innovation in collaboration with the division of property valuation and review, the agency of natural resources, and the agency of agriculture, food and markets, the Vermont Assessors and Listers Association, and the Vermont League of Cities and Towns shall continue in the effort to bring electronic coordination to the use value appraisal program. No later than January 15, 2009, the department shall submit a report on this project to the house committees on ways and means and on fish, wildlife and water resources and the senate committees on finance and on natural resources and energy.  The report shall address the recommendations on administrative matters of the use value appraisal task force and include a proposed budget and time frame for the different parts of the project.  The report shall include a review of different funding options to make the administration of the program self-sustainable.

Sec. 12.  OUTREACH AND EDUCATION ABOUT THE PROGRAM

(a)  The department of forests, parks and recreation, the division of property valuation and review, the agency of agriculture, food and markets, and the current use advisory board shall consult with the Vermont Assessors and Listers Association, the Vermont League of Cities and Towns, the Vermont Use Value Appraisal Coalition, the Vermont Farm Bureau, the Vermont Land Trust, the Vermont Forest Products Association, Rural Vermont, the Vermont Natural Resources Council, and other stakeholders to

(1)  develop an outreach and education program to address possible misperceptions about the program identified by the use value appraisal task force in its report. The program shall be comprehensive and shall outline a strategy to communicate with the general public, listers, potentially eligible landowners, enrolled landowners, attorneys, and realtors.

(2)  include a plan to address the areas of further investigation identified by the task force, including:

(A)  the program definitions of “agricultural land” and “farmer”;

(B)  whether there should be different valuations of land based on the kind of use of the land;

(C)  use of the Geographic Information System in the program;

(D)  review of the results of the amendment to the 20-percent rule;

(E)  whether conserved parcels managed for ecological purposes should be enrolled in the program;

(F)  ongoing monitoring of the program.

(b)  The group shall submit a detailed report on its efforts on or before January 15, 2009 to the house committees on fish, wildlife and water resources and on agriculture and the senate committees on natural resources and energy and on agriculture.

Sec. 13.  EFFECTIVE DATE

This act shall take effect upon passage except for Sec. 8, which shall apply to grand lists of April 1, 2009 and after.

(Committee vote: 9-0-0)

Rep. Winters of Williamstown, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Fish, Wildlife and Water Resources and when further amended as follows:

First:  In Sec. 2, 32 V.S.A. § 3756(e), in the second sentence, by striking “is received by the department” and inserting in lieu thereof “has been recorded by the municipality” and in the fourth sentence, by striking “$25.00” and inserting in lieu thereof “$30.00

Second:  In Sec. 8, 32 V.S.A. § 4111(e), in the second sentence, at the end before the period, by adding “or the adjustment of that value by the common level of appraisal” and in subsection (g), in the second sentence, at the end before the period, by adding “or the adjustment of that value by the common level of appraisal

(Committee vote: 10-0-1)

(For text see Senate Journal 3/25/08 – P. 448; 3/27/08 – P. 476 )

S. 313

An act relating to a license to store and ship wine.

Rep. Moran of Wardsboro, for the Committee on General, Housing and Military Affairs, recommends that the House propose to the Senate that the bill be amended as follows:

Sec. 1.  7 V.S.A. § 68 is added to read:

§ 68.  VINOUS BEVERAGE STORAGE AND SHIPPING LICENSE

The liquor control board may grant to a person who operates a

climate-controlled storage facility in which vinous beverages owned by another person are stored for a fee a license that allows the licensee to store and transport vinous beverages on which all applicable taxes already have been paid.  A vinous beverage storage facility may also accept shipments from any licensed in-state or out-of-state vinous manufacturer that has an in-state or out‑of‑state consumer shipping license pursuant to section 66 of this title.  Vinous beverages stored may be transported only for shipment to the owner of the beverages or to another licensed vinous beverage storage facility, and the beverages shall be shipped only by common carrier in compliance with subsection 66(f) of this title.  The licensee shall pay a fee pursuant to subdivision 231(a)(20) of this title.   A license under this section shall be issued pursuant to rules adopted by the board.  A person granted a license pursuant to this section may not sell or resell any vinous beverages stored at the storage facility. 

(Committee vote: 8-0-0)

Rep. Sharpe of Bristol, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on General, Housing and Military Affairs.

(Committee vote: 10-0-1)

(For text see Senate Journal 2/12/08 – P. 144 )

S. 336

An act relating to juvenile judicial proceedings.

Rep. Flory of Pittsford, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended as follows:

First:  In Sec. 1, 33 V.S.A., by striking chapter 51 in its entirety and inserting in lieu thereof a new chapter 51 to read as follows:

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 (beyond parental control), 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 (beyond parental control), 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.

(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.  A person is considered to have abandoned a child if the person is: unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child’s care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or 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.

(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  which the court may determine 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)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

§ 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 22.

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

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

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

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

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

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

§ 5105.  Venue and Change of Venue 

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

(1)  the child is domiciled;

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

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

(b)  If a child or 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.  To the extent that it is appropriate and possible siblings in the commissioner’s custody shall be placed together. 

(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.

§ 5121.  CASE PLANNING PROCESS

The department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child’s family, relatives and other persons with a significant relationship to the child.  Whenever possible, parents, guardians and custodians shall participate in the development of the case plan.

§ 5122.  MISCONDUCT DURING COURT PROCEEDINGS

A person who engages in misconduct while participating in a court proceeding under chapters 51, 52, or 53 of this title may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy.  The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under chapters 51, 52, and 53 of this title.  This section shall not be construed to create a private right of action or a waiver of sovereign immunity.

Second: In Sec. 2, 33  V.S.A. § 5203(e), by striking subdivisions (1), (2), and (3) in their entirety.

Third: In Sec. 2, 33 V.S.A. § 5221(c), after the word “child’s” by inserting the word “custodial

Fourth:  In Sec. 2, 33 V.S.A. § 5223(b), after the word “notice” by inserting the words  “,including the noncustodial parent,”  

Fifth:  In Sec.2, 33 V.S.A. § 5224, after the words “child or” by striking the word “parent” and inserting in lieu thereof the words “custodial parent, guardian, or custodian” 

Sixth:  In Sec. 2, 33 V.S.A. § 5225, by striking subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

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

Seventh:  In Sec. 2, 33 V.S.A. § 5230(b)(6), by striking the word “parents” and inserting in lieu thereof the words “parent, guardian, or custodian

Eighth:  In Sec. 2, 33 V.S.A. § 5235, by striking subsection (j) in its entirety and inserting in lieu thereof new subsections (j) and (k) to read as follows:

(j)  In accordance with 13  V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008.

(k)(1)  The restitution unit may bring an action to enforce a restitution order issued under this section in the superior or small claims court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in superior or small claims court in the same manner as a civil judgment. Superior and small claims court filing fees shall be waived for an action under this subsection, and for an action to renew a restitution judgment.

(2)  An action under this subsection may be brought only after the offender reaches 18 years of age, and shall not be subject to any limitations period.

(3)  For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential.

Ninth:  In Sec. 2, 33 V.S.A. § 5252, by striking subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

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

Tenth: In Sec. 2, 33 V.S.A. § 5252(c), after the word “child’s” where it twicely appears, by inserting the word “custodial

Eleventh: In Sec. 2, 33 V.S.A. § 5253(a)(2), after the word “made” by striking the words “without hearing or notice to the custodial parent, guardian, or custodian” and inserting in lieu thereof the words “ex parte

Twelfth: In Sec.2, by striking § 5254 in its entirety and inserting in lieu

thereof a new § 5254 to read as follows:

§ 5254.   Notice of Emergency Care Order and Temporary

               Care Hearing

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

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any non custodial parent and provide the noncustodial parent with the emergency care or conditional custody order, notice of the date, hour, and place of the temporary care hearing and of the 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)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent 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.

Thirteenth:  In Sec. 2, 33 V.S.A. § 5255(d), after the words “noncustodial parent” by inserting the words “and his or her attorney

Fourteenth:  In Sec.2, 33 V.S.A., by striking §5256 in its entirety and inserting in lieu thereof a new § 5256 to read as follows:

§ 5256.  Temporary Care Order

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

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

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

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

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the 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 the noncustodial parent’s request for temporary custody 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, 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)  Conditions of release.

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

(C)  Requiring the department to provide the child with services if legal custody has been transferred to the commissioner.

(D)  Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities.

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

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

(G)  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.

Fifteenth:  In Sec. 2, 33 V.S.A., by striking § 5258 in its entirety and inserting in lieu thereof a new § 5258 to read as follows:

§ 5258.  PostDisposition Review and Permanency Review

              for Delinquents in Custody

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

Sixteenth:  In Sec. 2, 33 V.S.A. § 5263(b), after the word “juvenile” where it appears the second time, by striking the words “and the parents or the guardian or custodian of the child, if other than parent” and inserting in lieu thereof the words “and a custodial parent, guardian, or custodian

Seventeenth:  In Sec. 2, 33 V.S.A. § 5263(c), after the words “signature of a” by inserting the word “custodial

Eighteenth:  In Sec. 2, 33 V.S.A. § 5284(b)(2)(A), after the word “offender;” by striking the word “or” and inserting in lieu thereof the word “and

Nineteenth:  In Sec. 2, 33 V.S.A. § 5293(a)(2)(A)(i), after the word “her” by striking the word “parents” and inserting in lieu thereof the words “custodial parent

Twentieth:  By adding a new Sec. 5 to read as follows:

Sec. 5.  33 V.S.A. § 5802 is added to read:

§ 5802.  SEPARATION OF VICTIM OF SEXUAL ASSAULT AND

              PERPETRATOR

The commissioner of the department for children and families shall develop policies applicable when the department knows or learns that a sexual assault perpetrator and his or her victim have been simultaneously placed at the facility.  The policies shall include processes and procedures for continued separation of or minimizing incidental contact between the perpetrator and the victim, while ensuring that they both receive educational and other appropriate services.

Twenty-first:  By adding a new Sec. 6 to read as follows:

Sec. 6.  JUVENILE JURISDICTION POLICY AND OPERATIONS

            COORDINATING COUNCIL

(a)  The juvenile jurisdiction policy and operations coordinating council is established in order to plan and develop the steps advisable to better address age appropriate responses to older youth within the juvenile justice system.  The council shall report to the House and Senate Committees on Judiciary on or before December 15, 2008.  The report may consider the Juvenile Justice Jurisdiction Study submitted to the agency of human services in December 2007 as well as other relevant information and recommend any changes to Vermont juvenile justice jurisdiction policy the council decides are advisable.  With respect to any policy changes recommended, the report shall include:

(1)  Necessary statutory changes;

(2)  Necessary structural modifications to the juvenile system, including personnel and programming requirements and changes; and

(3)  Cost implications and financial impacts.

(b)  The Council shall consist of the following members:

(1)  The administrative judge or designee.

(2)  The court administrator or designee.

(3)   The defender general or designee.

(4)  The attorney general or designee.

(5)  The executive director of the department of state's attorney’s and sheriffs or designee.

(6)  The commissioner of the department for children and families or designee.

(7)  The director of the juvenile justice commission or designee.

(8)  The commissioner of corrections or designee.

(9)  The commissioner of public safety or designee.

And by renumbering the remaining sections to be numerically correct.

(Committee vote: 10-0-1)

(For text see Senate Journal 3/11/08 – P. 271; 3/12/08 – P. 304 )

Rep. Haas of Rochester, for the Committee on Human Services, recommends that the report of the committee on Judiciary be amended as follows:

First:  In Sec. 1, 33 V.S.A. § 5117, by adding a new subsection (g) to read as follows:

(g)  Until an information regarding the matter is filed in district court and becomes a public record, all records relating to the citation, arrest, or detention of a child under the age of 18 for a delinquent or criminal offense other than a listed crime shall be maintained in the manner required by subsection (a) of this section. 

Second:  In Sec. 2, 33 V.S.A. § 5251(2), by striking “52” and inserting “51

Third:  In Sec.2, 33 V.S.A. § 5256(b) after the words “safety of the child” by inserting the words “and the safety of the community,

Fourth:  In Sec.2, 33 V.S.A. § 5256(b)(1) after the words “to protect the child” by inserting the words “and the community

Fifth:  In Sec.2, 33 V.S.A. § 5256(b)(2)(A)(ii) after the word “control” by inserting the words “sufficient to protect the community

Sixth:  In Sec.2, 33 V.S.A. § 5256(b)(2)(C)(ii) after the words “safety of the child” by inserting the words “or the safety of the community

Seventh:  In Sec.2, 33 V.S.A. § 5256(b)(3)(B)(ii) after the word “child” by inserting the words “sufficient to protect the community

Eighth:  In Sec. 2, after the word “youth” by striking the word “offender

Ninth:  In Sec. 6, subsection (a), by adding new subdivisions (4) and (5) to read: 

(4)  Review of the impact on 16- and 17-year olds of being commingled with older offenders.

(5)  A summary of evidence-based research on outcomes and recidivism rates by juvenile offenders and juvenile delinquents, including comparisons of minors processed as juvenile delinquents with minors processed as adult offenders. 

Tenth:  In Sec. 6, subsection (b), by adding new subdivisions (10) and (11) to read:

(10)  A mental health professional with experience working with juveniles, appointed by the Vermont council of developmental and mental health services.

(11)  A law enforcement officer with experience working with juveniles, appointed by the commissioner of public safety.

Eleventh: By adding a new Sec. 7 to read as follows:

Sec. 7.    REPORT FROM THE DEPARTMENT FOR CHILDREN AND

               FAMILIES

(a)  No later than December 1, 2008, the department for children and families shall report to the general assembly on the following:

(1)  Procedures used to identify parents with disabilities.

(2)  Procedures for modifying case plans, disposition case plans, service plans and permanency plans to include the use of adaptive equipment and parental supports for parents with disabilities.

(3)  Procedures used to assess family strengths and weaknesses as they relate to children and parents with disabilities.

(4)  The state’s ability to accommodate the court-related needs of children and parents with disabilities as they relate to juvenile judicial proceedings.

(b)  In preparation of the report, the department for children and families shall consult with:

(1)  The family support project at the University of Vermont.

(2)  The Vermont judiciary.

(3)  The office of the defender general.

(4)  The department of aging and independent living.

And by renumbering the remaining sections to be numerically correct.

(Committee vote: 11-0-0)

(For text see Senate Journal 3/11/08 – P. 271; 3/12/08 – P. 304 )

S. 354

An act relating to public agency deferred compensation plans.

Rep. Jerman of Essex, for the Committee on Government Operations, recommends that the House propose to the Senate that the bill be amended as follows:

      In Sec. 2, 3 V.S.A. § 651(f), by striking the last sentence in its entirety and inserting in lieu thereof the following: “An investment program established by the teachers’ board shall be optional for public agencies set forth in subdivision 650(4)(C) of this title.  The public agency shall be the trustees of its plans created under Subsection 403(b) of the Internal Revenue Code.

(Committee vote: 10-0-1)

(For text see Senate Journal 3/20/08 – P. 306)

S. 364

An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear plant.

Rep. Klein of East Montpelier, for the Committee on Natural Resources and Energy, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE INTENT AND PURPOSE

(a)  No. 160 of the Acts of the 2005 Adj. Sess. (2006) reconfirmed the obligation and authority of the general assembly to examine the reliability of the nuclear power station of Entergy Nuclear Vermont Yankee (ENVY) in order to determine if it should be authorized to operate in this state beyond the expiration of its current operating license on March 21, 2012.

(b)  The general assembly finds that Entergy Nuclear Vermont Yankee has had one of the highest percentage power increases of any plant in the country and now is applying for a 20-year life extension beyond its 40-year design.  It is therefore the intent of the general assembly to determine on behalf of the people of the state of Vermont the reliability issues associated with operating ENVY for an additional 20 years after its scheduled closure in 2012.

(c) The general assembly finds that Entergy Nuclear Vermont Yankee provides approximately one-third of the power used by the citizens of Vermont.  It has been a reliable generation source for Vermont.  However, in 2007 it experienced two operational difficulties that required that it reduce power or go to zero power production.  When the station reduces power output or does not produce power, Vermont utilities have to purchase market power, often at a greater price to our citizens. It is in the State’s economic interests to ensure that the station is a reliable source of power.

(d)  It is the purpose of this act to provide for a thorough, independent, and public assessment of the reliability of the systems, structures, and components of the Entergy Nuclear Vermont Yankee facility.  The comprehensive reliability assessment required by this act shall:

(1)  Achieve the goals and objectives set out in Sec. 2 of this act;

          (2)  Assess the reliability of specific systems identified in Sec. 3 of this        act;

(3)  Address the specific audit inquiries with respect to those systems, as set out in Sec. 4 of this act; and

(4)  Employ audit methodologies as set out in Sec. 5 of this act.

Sec. 2.  GOALS AND OBJECTIVES

Giving due consideration to the following areas consistent with Vermont’s legitimate state interests, the goals and objectives of an independent comprehensive reliability assessment of the Vermont Yankee nuclear facility are to:

(1)  Assess the conformance of the facility to its design and licensing bases, for operating at up to 120 percent of its originally intended power production level, including appropriate reviews at the plant's site and its corporate offices;

(2)  Identify all relevant deviations, exemptions, or waivers, or any combination of these from any regulatory requirements applicable to Vermont Yankee and from any regulatory requirements applicable to new nuclear reactors, and verify whether adequate operating margins are retained despite the cumulative effect of any deviations, exemptions, or waivers for the present licensed power level for the proposed period of license extension;

(3)  Assess the facility's operational performance, and the facility’s reliability for continued power production, giving risk perspectives where appropriate;

(4)  Evaluate the effectiveness of licensee self-assessments, corrective actions, and improvement plans; and

(5)  Determine the cause or causes of any significant operational shortcomings identified and draw conclusions on overall performance.

Sec. 3.  SPECIFIC SYSTEMS TO BE ASSESSED

(a) The comprehensive reliability assessment shall include an in-depth inspection of at least the seven whole plant systems listed in this subsection. 

(1)  An electrical system:  the back-up or stand-by electrical system, including the diesel generators, batteries, the Vernon dam tie, and all associated electrical connections and controls.

(2)  An emergency system:  the emergency core cooling system, including both high- and low-pressure injection systems.

(3)  A mechanical system:  the condensate feed water system, including the condenser.

(4)  The primary containment system, including all associated systems, structures, and components, such as dry well shell, torus supports, residual heat removal system, isolation valves, containment spray, and adequate suction.

(5)  A heat removal system:  the cooling towers and alternate cooling system, including both cooling tower cells used for normal cooling and those that are emergency-related towers.

(6)  A cooling system dependent upon Connecticut River water: alternate cooling system and emergency service water.

(7) An underground piping system that carries radionuclides.

(b) Additional systems may be selected for audit by the public oversight panel established in Sec. 6 of this act in consultation with the department of public service.                   (c)  In addition, the audit shall include an investigation and assessment of a generic systems issue:  cable separation — separation of safety systems, including physical and electrical separation.

Sec. 4.  SPECIFIC AUDIT INQUIRIES

The audit of each system shall include physical and documentation examination of the entire system, including each system’s relevant components.  Specific inquiries to be addressed shall include, but are not limited to, the following:

(1)  Initial conditions.  What were the codes and standards with which

the system was designed to comply and what was the design basis?  Is the design of the system in keeping with the expected initial conditions and its design basis?

(2)  Procurement.  If there were procurement changes, was a new set of review calculations completed for those procurement changes and were those procurement changes compared against the original design and all of its calculations?

(3)  Installation - “as-built.”  Do plant records adequately represent the as-built condition of the plant?  Are all changes reflected in all documents from the design basis through as-built and through current operations?

(4)  Operation.  What changes or compensations have been made to accommodate unanticipated operations outcomes?  Have those changes, compensations, and accommodations been duly noted in procedural manuals and logs?  Have root cause analyses been conducted to reflect unanticipated outcomes?  If root cause analyses were not conducted in any particular instance, why not?  If root cause analyses were not conducted in any particular instance, have any unanticipated system operations outcomes been duly corrected or compensated in all safety and reliability operations and procedures?

(5)  Testing.  When systems have undergone periodic tests, what have been the results?  Are resulting corrective actions reflected in all documents from design through as-built through current operations?

(6)  Inspection.  When systems have undergone periodic inspections, have those inspections been successful?  Are the resulting changes reflected in all documents from design through as-built through current operations?

(7)  Maintenance.  Has the management system for aging components been adequately maintained to assure the components meet the design basis?  Is there a track-change system in place to determine what components have been reviewed, repaired, or replaced?  Is there an accurate system in place to record when those reviews and repairs were completed?  Is there a program of operations or a schedule of operations that specifically delineates what aging management systems, as identified in the industry-wide database, are being reviewed and when?  Is adequate time allowed in each outage for aging management review and adequate maintenance?  Are the aging factors discovered actually being repaired in a timely manner?

(8)  Repairs.  Have repairs been performed which assure the system will operate as expected?  Are all repairs completed as soon as possible?  Are repairs sufficiently in-depth to effectively invest in the plant and its operational systems?

(9)  Modifications.  Do all modifications to the system also comply with the system's original design basis?  Have all procedure manuals and operations manuals been updated to reflect the impact of any modifications made to any system?

(10)  Redesign.  Have changes made to the plant since its original construction been reviewed to ensure that safety margins have not been reduced?  Has each component modified for uprate been reviewed to assure that operational margins have not been reduced and to assure that design basis redundancy has not been compromised?   Have any repairs, maintenance, or modifications impacted the original design of the redundant safety systems?  Are all systems still “single failure proof”?

(11)  Seismic analysis.  When was the most recent modern,

computer-generated, finite element seismic analysis performed on each of the seven vertical slice systems examined in the audit?  Does ENVY remain capable of withstanding design basis events beyond the original 40-year design life of the plant to reflect the age-related changes in the plant and weight changes from all modifications during the first 35 years of operation?

(12)  Training.  Has an adequate review and evaluation of operator training and operating procedures been conducted?  Has each change been adequately reflected in the operations procedures?  Have operations personnel been adequately trained in all modifications to all systems?  Are operations personnel frequently updated and trained regarding any troublesome issues other plants have uncovered which may compromise operations and safe shutdown?

(13)  Corrective action programs.  What corrective action programs have been established for each of the systems audited?  Have the corrective actions taken been properly integrated in the corrective action program?  Have corrective actions been taken in a timely manner?  Where recorded items have been deferred, have they been appropriately evaluated for risks and potential consequences of deferral and appropriately tracked while awaiting resolution?

Sec. 5.  DESIGN AND METHODOLOGY

     (a) The department of public service, in consultation with the public oversight panel, shall design the work plan and establish a time frame for the comprehensive reliability assessment.  The following methodology shall be employed unless with respect to any specific system, component or procedure the department, in consultation with the oversight panel, determines that employing such methodology would be inefficient or ineffective: 

          (1)  Vertical investigation.  The audit shall commence with an examination of the initial start-up conditions of the Vermont Yankee plant and examine the subsequent history of its modifications, maintenance, repairs, and current operations.  Such vertical inspection shall be made of each whole plant system selected for assessment.

          (2)  Horizontal investigation.  At any point in the vertical inspection at which an emergency-related function, the operability, the design, the performance, or aging issues, or other unanalyzed or nonconforming conditions are encountered, a thorough horizontal or lateral exploration shall be conducted to determine extent-of-condition and root cause with attention to evaluating licensee performance in problem identification and resolution, testing, engineering, in-service inspection, and maintenance.

(b)  In addition to the vertical and horizontal inspections prescribed in this section, the department in consultation with the public oversight panel may include in the design of the audit the investigation or assessment of any other system, component, or procedure utilizing any other methodology that the department and oversight panel deem necessary to provide a complete and comprehensive evaluation of the reliability of the Vermont Yankee nuclear facility.

Sec. 6.  PUBLIC OVERSIGHT PANEL

(a)  The comprehensive reliability assessment required by this act shall be conducted with the maximum amount of transparency and public oversight and involvement.  To that end, a public oversight panel is created to include five members who have demonstrated expertise in nuclear technology or nuclear regulation to be selected as follows:

(1)  The speaker of the house, the president pro tempore of the senate, and the governor shall jointly appoint three members; and

(2)  Two members shall be selected jointly by the three members appointed pursuant to subdivision (1) of this subsection.

(b)  The public oversight panel shall be appointed as soon as possible after the effective date of this act.  If after twenty-one days from this act’s effective date the speaker, president pro tem and the governor fail to reach consensus on any of the three joint appointments, the Public Service Board shall make that appointment. The panel shall elect a chair and vice chair from among its members, and upon its request, the panel shall have the assistance of the department of public service for administrative support.

(c) The public oversight panel shall have access to all records and documents consulted and generated in developing and conducting the comprehensive reliability assessment and to records and documents generated in any other audit of the Vermont Yankee Nuclear facility pertinent to the comprehensive reliability assessment. Because the public oversight panel will be reviewing and discussing proprietary and security related documents, the public oversight panel shall not be considered a public body pursuant to 1 V.S.A. § 310 nor shall it be subject to the access to public records statutes embodied in 1 V.S.A. §§ 315-320. After the public oversight panel publicly reports its findings and evaluation to the general assembly as required in subsection (d) of this section, the panel may be subject to public access requests for material relied upon in making its findings and report with redactions of proprietary or security information as needed.

(d)  No later than January 30, 2009, the public oversight panel shall publicly report its findings and evaluation to the general assembly for the purpose of informing the legislature in making its determination whether the Entergy Nuclear Vermont Yankee plant should be authorized to operate in the state beyond the expiration of its current license on March 21, 2012.

(e)  The evaluation and recommendations of the public oversight panel and the report and findings of the audit shall be made available to the director of public advocacy of the department of public service, and may be used by the director of public advocacy as deemed appropriate by the department to represent the interests of the public in any proceedings before the public service board relating to a certificate of public good for relicensing ENVY for operation beyond March 21, 2012 or for decommissioning, or other related proceedings.

Sec. 7.  AUDIT INSPECTION TEAM

The department of public service in consultation with the public oversight panel shall select an audit inspection team of a sufficient number of qualified consultants, experts, and technicians as necessary to conduct all or any part of the comprehensive reliability assessment required by this act. The consultants, experts and technicians selected shall not at any time during the three years prior to the effective date of this act have worked for or at the Vermont Yankee facility, Entergy Nuclear Vermont Yankee, or any other nuclear power plant owned and operated by Entergy Nuclear Vermont Yankee or any of its affiliates.

Sec. 8.  Expenses and Costs

(a)  The members of the public oversight panel are entitled to receive compensation as determined jointly by the speaker of the house, the president pro tempore of the senate, and the secretary of administration.  Members of the public oversight evaluation panel shall also be entitled to reimbursement for actual and necessary expenses related to the performance of their duties.  The compensation and costs incurred by the public oversight panel shall be charged to the petitioner for a license extension under the provisions of

30 V.S.A. §§ 20 and 21.

(b)  The compensation and costs incurred by the audit inspection team and other expenses incurred in the conduct of the comprehensive reliability assessment shall be charged to the petitioner for a license extension under the provisions of 30 V.S.A. §§ 20 and 21.

Sec. 9.  EFFECTIVE DATE

(a) This act shall take effect from passage.

(b) Notwithstanding the July 1, 2008 commencement date in 30 V.S.A. §248(e)(2), added by No. 160 of the Acts of  2006, the Public Service Board may at any time after the passage of this act commence proceedings on any petition to operate a nuclear plant beyond the date permitted in its existing certificate of public good.

(Committee vote: 11-0-0)

No Senate Amendments

Favorable

S. 89

An act relating to permitting payment of rent into court pursuant to a commercial lease.

Rep. Pellett of Chester, for the Committee on Judiciary, recommends that the bill ought to pass in concurrence.

(Committee Vote: 9-0-2)

No Senate Amendments

S. 361

An act relating to authority to lease the state lottery.

Rep. Aswad of Burlington, for the Committee on Ways and Means, recommends that the bill ought to pass in concurrence.

(Committee Vote: 10-0-1)

(For text see Senate Journal 2/26/08 – P. 191)

S. 368

An act relating to the addition of new types of disinfectants to public water systems.

Rep. McCullough of Williston, for the Committee on Fish, Wildlife and Water Resources, recommends that the bill ought to pass in concurrence.

(Committee Vote: 9-0-0)

No Senate Amendments

S. 373

An act relating to full funding of decommissioning costs of a nuclear plant

Rep. Kitzmiller of Montpelier, for the Committee on Commerce, recommends that the bill ought to pass in concurrence.

(Committee Vote: 7-4-0)

No Senate Amendments

 

Senate Proposals of Amendment

H. 149

     An act relating to liquor identification and tobacco licenses.

     The Senate proposes to the House to amend the bill in Sec. 1, 7 V.S.A. § 602, in the first sentence after the words: “operator’s license” by adding the following: , enhanced driver’s license,

(For text see House Journal 4/18/04 – P. 664)

H. 257

     An act relating to the codification of existing community justice centers.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  24 V.S.A. chapter 58 is added to read:

CHAPTER 58.  COMMUNITY JUSTICE CENTERS

§ 1961.  Legislative findings

A system of community justice centers that operates under the authority of a single statute will:

(1)  Help each community justice center collaborate more closely with law enforcement and state’s attorneys, state agencies, social service providers, victim advocacy organizations, and other community resources.

(2)  Enhance the services each community justice center provides.

(3)  Help each community justice center further its policy interest of achieving restorative justice.

§ 1962.  Definitions

As used in this chapter:

(1)  “Legislative body” means the mayor and board of aldermen of a city, a city council, a town selectboard, the president and trustees of an incorporated village, or the legislative bodies of a group of municipalities.

(2)  “Municipality” means a city, town, incorporated village, or group of municipalities.

§ 1963.  Authority of municipalities

The legislative body of any municipality may create within its jurisdiction a community justice center to resolve civil disputes and address the wrongdoings of individuals who have committed municipal, juvenile, or criminal offenses.  A municipality may designate an organization to act as its community justice center.

§ 1964.  STRUCTURE OF THE COMMUNITY JUSTICE BOARDS

Each community justice center:

(1)  Shall have an advisory board comprised of at least 51 percent citizen volunteers.

(2)  May use a variety of restorative justice approaches, including community panels or boards, group conferencing, or mediation.

(3)  Shall include programs to resolve disputes, address the needs of victims, address the wrongdoing of the offender, and promote the rehabilitation of youthful and adult offenders.

§ 1965.  duties of the community justice centers

Each community justice center:

(1)  Shall work in close coordination with state agencies, law enforcement agencies, state’s attorneys, social service providers, victim advocacy organizations, and other community resources in administering the programs defined in subdivision 1964(3) of this title.

(2)  Shall, in collaboration with state and local agencies, provide training on the restorative justice process to citizen volunteers to enable their participation in the local community justice center.

(3)  May address quality of life issues in the community it serves by providing informational and educational resources to the community.

(4)  May apply for funding from private foundations, other governmental sources, or other sources.

§ 1966.  Community JUSTICE centers’ relationship with state government entities

(a)  The agency of human services shall provide to the community justice centers the information, analysis, and technical support which the community justice centers, in collaboration with the agency of human services, determine are necessary to further their policy of restorative justice.

(b)  Funding from the agency of human services.  The agency of human services may provide funding and authorize community justice centers to participate in the implementation of state programs related to juvenile and criminal offenses.

(c)  Access to information.  Community justice center employees and volunteers participating in state-funded programs shall have access to information, analysis, and technical support as necessary to carry out their duties within the program in accordance with state and federal confidentiality statutes and policies.  Victim information that is not part of the public record shall not be released without the victim’s consent.

(d)  Liability.

(1)  For the purposes of defining liability, community justice center volunteers participating in programs funded by the agency of human services pursuant to subsection (b) of this section shall be considered volunteers of that agency.

(2)  In all other cases, the state and the municipality shall each be liable for the acts and omissions of employees operating within the scope of their employment.

§ 1967.  CASES PROHIBITED

No case involving domestic violence, sexual violence, sexual assault, or stalking shall be referred to a community justice center except in department of corrections offender reentry programs pursuant to protocols protecting victims.  The community justice centers shall work with the department of corrections and the center for crime victim services or its designee to develop victim safety protocols for community justice centers that take into consideration victim needs such as safety, confidentiality, and privacy.

(For text see House Journal 3/18/08 – PP.  619 - 622)

H. 615

     An act relating to juvenile judicial proceedings.

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

First:  In Sec. 1, 33 V.S.A. § 5102, in subdivision (5), by adding a second sentence to read:

Any conditions and limitations shall be directed to the individual to whom custody is granted.

and in the same section by adding a new subdivision (28) to read as follows:

(28)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

and by renumbering the remaining subdivision to be numerically correct.

Second:  In Sec. 1, 33 V.S.A. § 5104(a), by striking out the number “19” and inserting in lieu thereof the number 22

Third:  In Sec. 1, 33 V.S.A. § 5108(b), after the first sentence, by adding a (c) so that the second sentence of subsection (b) becomes new subsection (c); and by relettering the remaining subsections of § 5108 to be alphabetically correct.

Fourth:  In Sec. 1, 33 V.S.A. § 5110(b), after the words “work of the court” by adding the following words , including a foster parent or a representative of a residential program where the child resides,

Fifth:  In Sec. 1, 33 V.S.A. § 5114, in subdivision (a)(4), by striking out the word “affection” and inserting in lieu thereof the words emotional support and in subsection (b) by striking out the word “affection” and inserting in lieu thereof the words emotional support

Sixth:  In Sec. 1, 33 V.S.A. § 5115(e) after the words “pursuant to this section who” by adding the word intentionally

Seventh:  In Sec. 1, 33 V.S.A. § 5117, in subdivision (b)(2) by striking out the words “Records and files” and inserting in lieu thereof the word Files and in subsection (c), after the first sentence by adding the following:  Files inspected under this subsection shall be marked:  UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO $2,000.00.

Eighth:  By adding a new Sec. 2 to read as follows:

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

Chapter 52.  DELINQUENCY PROCEEDINGS

Subchapter 1.  Commencement of Proceedings

§ 5201.  Commencement of Delinquency Proceedings  

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

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

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

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

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

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

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

§ 5202.  Order of adjudication; noncriminal

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

(A)  be deemed a conviction of crime;

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

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

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

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

§ 5203.  Transfer from other courts

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

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

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

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

(e)  Motions to transfer a case to family court for youthful offender treatment shall be made under section 5281 of this title.  

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

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

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

§ 5204.  Transfer from juvenile court 

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

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

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

(3)  assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c);

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

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

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

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

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

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

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

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

(12)  burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 5205.  Fingerprints; photographs

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

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

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

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

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

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

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

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

Subchapter 2.  Petition, Merits, and Disposition

§ 5221.  Citation and Notice to Appear at Preliminary Hearing 

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

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

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

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

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

§ 5222.  Petition; contents

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

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

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

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

(c)  A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision, and a child who has been adjudged a delinquent child as a result of a delinquency petition may not be subsequently adjudged a child in need of care or supervision, unless a separate petition alleging that the child is in need of care or supervision is filed.

§ 5223.  Filing of Petition 

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

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

§ 5224.   Failure to Appear at Preliminary Hearing  

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

§ 5225.  Preliminary Hearing  

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

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

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

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

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

§ 5226.  Notification of conditions of release to victim in delinquency proceedings

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

§ 5227.  Timelines for pretrial and merits hearing  

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

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

§ 5228.  Constitutional Protections for a Child in Delinquency Proceedings

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

§ 5229.  Merits Adjudication  

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

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

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

(1)  the plea is voluntary;

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

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

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

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

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

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

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

§ 5230.  Disposition Case Plan

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

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

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

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

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

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

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

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

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

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

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

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

§ 5231.  Disposition Hearing

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

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

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

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

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

§ 5232.  Disposition Order 

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

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

(2)  the protection of the community;

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

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

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

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

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

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

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

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

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

§ 5233.  Victim’s statement at disposition proceeding; victim notification

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

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

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

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

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

§ 5234.  Rights of victims in delinquency proceedings involving a  listed crime

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

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

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

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

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

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

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

§ 5235.  JUVENILE RESTITUTION

(a)  Restitution shall be considered in every case in which a victim of a delinquent act has suffered a material loss.  For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.

(b)  When ordered, restitution may include:

(1)  return of property wrongfully taken from the victim;

(2)  cash, credit card, or installment payments paid to the restitution unit; and

(3)  payments in kind, if acceptable to the victim.

(c)  In awarding restitution, the court shall make findings in accordance with subdivision 5262(b)(2) of this title.

(d)  If restitution is ordered, the victim shall be entitled to payment from the crime victims’ restitution fund, pursuant to 13 V.S.A. § 5363.  An order of restitution shall establish the amount of material loss incurred by the victim, which shall be the restitution judgment order.  Every order of restitution shall include:

(1)  the juvenile’s name and address;

(2)  the name of the victim;

(3)  the amount ordered; and

(4)  any co-defendant names if applicable.

(e)  In the event the juvenile is unable to pay the restitution judgment order at the time of disposition, the court shall fix the amount thereof, which shall not exceed an amount the juvenile can or will be able to pay, and shall fix the manner of performance or refer to a restorative justice program that will address how loss resulting from the delinquency will be addressed, subject to modification under section 5264 of this title.

(f)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim in accordance with 13 V.S.A. § 5363.

(g)  To the extent that the victims’ compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the crime victims’ compensation fund.

(h)  When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(i)  Any information concerning restitution payments made by a juvenile shall be available to the Vermont restitution unit for purposes of determining restitution obligations of adult and juvenile co-defendants.

(j)  In accordance with 13 V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008, and the order was first entered on or after July 1, 2004.

Subchapter 3.  Children in Custody

§ 5251.  Taking into custody

A child may be taken into custody by an officer:

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

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

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

§ 5252.  Request for Emergency Care Order 

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

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

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

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

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

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

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

§ 5253.   Emergency Care Order; CONDITIONAL CUSTODY                                            ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 5254.  Notice of Emergency Care Order and Temporary Care Hearing

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

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

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

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent the custodial parent. 

§ 5255.  Temporary Care Hearing     

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

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

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

(1)  The child.

(2)  The child’s custodial parent, guardian, or custodian, unless he or she 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)  A representative of the department.

(7)  The state’s attorney.

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

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

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

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

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

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

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

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

(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, custody, and the child’s welfare. 

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

§ 5256.  Temporary Care Order

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

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

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

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

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

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

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

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

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

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

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

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

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

(A)  Conditions of release.

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

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

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

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

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

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

§ 5257.  Filing of Initial Case Plan

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

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

§ 5258.  PostDisposition Review and Permanency Review for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title.  At the permanency review, the court shall consider only the permanency goal and whether the department should continue to maintain custody of the child and shall not consider the appropriateness of the particular placement chosen by the department.

Subchapter 4.  Probation

§ 5261.  Powers and responsibilities of the commissioner regarding juvenile probation

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

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

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

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

§ 5262.  Conditions of probation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 5263.  Juvenile probation certificate 

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

(1)  the name of the juvenile;

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

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

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

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

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

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

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

§ 5264.  Modification of conditions  

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

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

§ 5265.  Violation of conditions of probation 

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

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

§ 5266.  Summons, apprehension, and detention of juvenile probationer

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

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

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

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

§ 5267.  Detention hearing 

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

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

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

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

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

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

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

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

§ 5268.  Notice; violation hearing 

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

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

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

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

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

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

§ 5269.  Disposition alternatives upon violation of conditions of probation 

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

§ 5270.  Final judgment 

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

§ 5271.  Discharge from probation 

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

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

§ 5272.  Juvenile justice unit; juvenile justice director 

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

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

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

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

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

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

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

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

Subchapter 5.  Youthful Offenders

§ 5281.  MOTION IN DISTRICT COURT

(a)  A motion may be filed in the district court requesting that a defendant under 18 years of age in a criminal proceeding who had attained the age of 10 but not the age of 18 at the time the offense is alleged to have been committed be treated as a youthful offender.  The motion may be filed by the state’s attorney, the defendant, or the court on its own motion.

(b)  Upon the filing of a motion under this section and the entering of a conditional plea of guilty by the youth, the district court shall enter an order deferring the sentence and transferring the case to the family court for a hearing on the motion.  Copies of all records relating to the case shall be forwarded to the family court.  Conditions of release and any department of corrections supervision or custody shall remain in effect until the family court approves the motion for treatment as a youthful offender and orders conditions of juvenile probation pursuant to section 5284 of this title.

(c)  A plea of guilty entered by the youth pursuant to subsection (b) of this section shall be conditional upon the family court granting the motion for youthful offender status. 

(d)(1)  If the family court denies the motion for youthful offender treatment pursuant to subsection 5284 of this title, the case shall be returned to the district court and the youth shall be permitted to withdraw the plea.  The conditions of release imposed by the district court pursuant to subsection (b) of this section shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment had not been made. 

(2)  Subject to Rule 11 of the Vermont Rules of Criminal Procedure and Rule 410 of the Vermont Rules of Evidence, the family court’s denial of the motion for youthful offender treatment and any information related to the youthful offender proceeding shall be inadmissible against the youth for any purpose in the subsequent criminal proceeding in district court.   

§ 5282.  REPORT FROM THE DEPARTMENT

(a)  Within 30 days after the case is transferred to family court, unless the court extends the period for good cause shown, the department shall file a report with the family court.

(b)  A report filed pursuant to this section shall include the following elements:

(1)  A recommendation as to whether youthful offender status is appropriate for the youth.

(2)  A disposition case plan including proposed services and proposed conditions of juvenile probation in the event youthful offender status is approved. 

(3)  A description of the services that may be available for the youth when he or she reaches 18 years of age.

(c)  A report filed pursuant to this section is privileged and shall not be disclosed to any person other than the department, the court, the state’s attorney, the youth, the youth’s attorney, the youth’s guardian ad litem, the department of corrections, or any other person when the court determines that the best interests of the youth would make such a disclosure desirable or helpful.

§ 5283.  HEARING IN FAMILY COURT

(a)  Timeline.  A hearing on the motion for youthful offender status shall be held no later than 35 days after the transfer of the case from district court.

(b)  Notice.  Notice of the hearing shall be provided to the state’s attorney; the youth; the youth’s parent, guardian, or custodian; the department; and the department of corrections.

(c)  Hearing procedure.   

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

(2)  Hearings under subsection 5284(a) of this title shall be open to the public.  All other youthful offender proceedings shall be confidential.

(d)  The burden of proof shall be on the moving party to prove by a preponderance of the evidence that a child should be granted youthful offender status.  If the court makes the motion, the burden shall be on the youth.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.    

§ 5284.  DETERMINATION AND ORDER

(a)  In a hearing on a motion for youthful offender status, the court shall first consider whether public safety will be protected by treating the youth as a youthful offender.  If the court finds that public safety will not be protected by treating the youth as a youthful offender, the court shall deny the motion and return the case to district court pursuant to subsection 5281(d) of this title.  If the court finds that public safety will be protected by treating the youth as a youthful offender, the court shall proceed to make a determination under subsection (b) of this section.

(b)(1)  The court shall deny the motion if the court finds that:

(A)  the youth is not amenable to treatment or rehabilitation as a youthful offender; or

(B)  there are insufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(2)  The court shall grant the motion if the court finds that:

(A)  the youth is amenable to treatment or rehabilitation as a youthful offender; or

(B)  there are sufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(c)  If the court approves the motion for youthful offender treatment, the court:

(1)  shall approve a disposition case plan and impose conditions of juvenile probation on the youth; and

(2)  may transfer legal custody of the youth to a parent, relative, person with a significant relationship with the youth, or commissioner, provided that any transfer of custody shall expire on the youth’s eighteenth birthday. 

(d)  The department shall be responsible for supervision of and providing services to the youth until he or she reaches the age of 18.  A lead case manager shall be designated who shall have final decision-making authority over the case plan and the provision of services to the youth.  The youth shall be eligible for appropriate community-based programming and services provided by the department.

(e)  The youth shall not be permitted to withdraw his or her plea of guilty after youthful offender status is approved except to correct manifest injustice pursuant to rule 32(d) of the Vermont Rules of Criminal Procedure. 

§ 5285.  Modification or revocation of disposition

(a)  If it appears that the youth has violated the terms of juvenile probation ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion for modification or revocation of youthful offender status may be filed in family court.  The court shall set the motion for hearing as soon as practicable. The hearing may be joined with a hearing on a violation of conditions of probation under section 5265 of this title.  A supervising juvenile or adult probation officer may detain in an adult facility a youthful offender who has attained the age of 18 for violating conditions of probation.  

(b)  A hearing under this section shall be held in accordance with section 5268 of this title.

(c)  If the court finds after the hearing that the youth has violated the terms of his or her probation, the court may:

(1)  maintain the youth’s status as a youthful offender, with modified conditions of juvenile probation if the court deems it appropriate;

(2)  revoke the youth’s status as a youthful offender status and return the case to the district court for sentencing; or

(3)  transfer supervision of the youth to the department of corrections.

(d)  If a youth’s status as a youthful offender is revoked and the case is returned to the district court under subdivision (c)(2) of this section, the district court shall hold a sentencing hearing and impose sentence.  When determining an appropriate sentence, the district court may take into consideration the youth’s degree of progress toward rehabilitation while on youthful offender status.  The district court shall have access to all family court records of the proceeding.  

§ 5286.  Review prior to the age of 18

(a)  The family court shall review the youth’s case before he or she reaches the age of 18 and set a hearing to determine whether the court’s jurisdiction over the youth should be continued past the age of 18.   The hearing may be joined with a motion to terminate youthful offender status under section 5285 of this title.  The court shall provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, the department, and the department of corrections. 

(b)  After receiving a notice of review under this section, the state may file a motion to modify or revoke pursuant to section 5285 of this title.  If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5285 of this title shall be available to the court.

(c)  The following reports shall be filed with the court prior to the hearing:

(1)  The department shall report its recommendations, with supporting justifications, as to whether the family court should continue jurisdiction over the youth offender past the age of 18 and, if continued jurisdiction is recommended, whether the department or the department of corrections should   be responsible for supervision of the youthful offender.

(2)  If the department recommends that the department of corrections be responsible for supervision of the youthful offender past the age of 18, the department shall notify the department of corrections, which shall report on the services which would be available for the youth in the event supervision over him or her is transferred to the department of corrections.  

(d)  If the court finds that it is in the best interest of the youth and consistent with community safety to continue the case past the age of 18, it shall make an order continuing the court’s jurisdiction up to the age of 22.  The order shall specify whether the youth will be supervised by the department or the department of corrections.  Irrespective of which department is specified in the order, the department and the department of corrections shall jointly develop a case plan for the youth and coordinate services and share information to ensure compliance with and completion of the juvenile disposition.

(e)  If the court finds that it is not in the best interest of the youth to continue the case past the age of 18, it shall terminate the disposition order, discharge the youth, and dismiss the case in accordance with subsection 5287(c) of this title.

§ 5287.  Termination or continuance of PROBATION

(a)  A motion may be filed at any time in the family court requesting that the court terminate the youth’s status as a youthful offender and discharge him or her from probation.  The motion may be filed by the state’s attorney, the youth, the department, or the court on its own motion.  The court shall set the motion for hearing and provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, and the department.   

(b)  In determining whether a youth has successfully completed the terms of probation, the court shall consider:

(1)  the degree to which the youth fulfilled the terms of the case plan and the probation order;

(2)  the youth’s performance during treatment;

(3)  reports of treatment personnel; and

(4)  any other relevant facts associated with the youth’s behavior.

(c)  If the court finds that the youth has successfully completed the terms of the probation order, it shall terminate youthful offender status, discharge the youth from probation, and file a written order dismissing the family court case.  The family court shall provide notice of the dismissal to the district court, which shall dismiss the district court case. 

(d)  Upon discharge and dismissal under subsection (c) of this section, all records relating to the case in the district court shall be expunged, and all records relating to the case in the family court shall be sealed pursuant to section 5119 of this title.

(e)  If the court denies the motion to discharge the youth from probation, the court may extend or amend the probation order as it deems necessary.

§ 5288.   Rights of victims in youthful offender                                                        proceedings

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

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

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

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

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

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

(b)  In accordance with court rules, at a hearing on a motion for youthful offender treatment under section 5281 of this title, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition.  In ordering disposition, the court shall consider any views offered at the hearing by the victim.  If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

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

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

Subchapter 6.  Placement of Minors in Secure Facilities

§ 5291.  Detention of Minors Charged as Delinquents in a   Secure Facility for the Detention of Delinquent Children

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

(b)  Upon a finding at the temporary care hearing that no other suitable placement is available and the child presents a risk of injury to him- or herself, to others, or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child.  Alternatively, the court may order that the child be placed in a secure facility used for the detention of delinquent children for up to seven days.  Any order for placement at a secure facility shall expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days.

§ 5292.  Detention in Adult Facilities of Minors Charged or Adjudicated as Delinquents

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

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

(c)  The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor who is or appears to be under the age of 18 years is received at the facility other than pursuant to subsection (a) of this section or section 5293 of this title and shall deliver the minor to the court upon request of the court or transfer the minor to the detention facility designated by the court by order.

§ 5293.  Disposition of minors adjudicated as adult offenders; separation of persons under 18 years from adults

(a)  Pretrial detention.

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

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

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

(ii)  be delivered to the district court.

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

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

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

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

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

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

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

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

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

and by renumbering the remaining sections of the bill to be numerically correct.

Ninth:  In the renumbered Sec. 3, 33 V.S.A. § 5301(2), after the word “removal” by adding the words from the child’s current home

Tenth:  In the renumbered Sec. 3, 33 V.S.A. § 5302(b)(2), in the last sentence after the word “The” by adding the words officer shall contact the department and the

Eleventh:  In the renumbered Sec. 3, 33 V.S.A. § 5306, in subsection (a), in the first sentence, after the words “order to the” by inserting the word custodial and in the third sentence by striking out the words “the parents” and inserting in lieu thereof the words such persons and in subsection (b), in the first sentence, after the word “conditional” by striking out the word “care” and inserting in lieu thereof the word custody and, in the second sentence, by striking out the following: “, in writing,

Twelfth:  In the renumbered Sec. 3, 33 V.S.A. § 5307(e), by striking out subdivision (5) in its entirety and inserting in lieu thereof:

(5)(A)  The identity and location of a noncustodial parent, a relative, or a 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 a summary of the efforts made to locate the parent.

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

Thirteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308, by striking out subsection (b) in its entirety and inserting in lieu thereof:

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

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

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

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

Fourteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308(c), in subdivision (2)(B) after the words “with services” by adding the following: , if legal custody of the child has been transferred to the commissioner  and by adding a new subdivision (3) to read: 

(3)  In his or her discretion, the commission may provide assistance and services to children and families to the extent that funds permit notwithstanding subdivision (2)(B) of this subsection.

Fifteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308(c)(2)(C), after the word “disabilities” by adding the words provided that the child’s needs are given primary consideration

Sixteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5309(d), in the first sentence after the words “request of the” by adding the words secretary of the and in the last sentence by striking out the words “requirements of subdivision 5102(2)(C)” and inserting in lieu thereof the words criteria of subdivision 5102(2)(B)(ii)

Seventeenth:  In the renumbered Sec. 3, 33 V.S.A. § 5311, in the catchline by striking out the following:  “; PRELIMINARY HEARING

Eighteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5313(b), after the words “is issued” by adding the words except for good cause shown

Nineteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5316, in subdivision (b)(4) after the word “disabilities” by adding the words provided that the child’s needs are given primary consideration and by striking out subdivision (b)(9) in its entirety

Twentieth:  In the renumbered Sec. 3, 33 V.S.A. § 5319(b), at the end of the subsection by adding the following: The court may allocate the costs of supervised visitation.

Twenty-first:  In the renumbered Sec. 3, by adding a new 33 V.S.A. § 5322 to read as follows:

§ 5322.  PostDisposition Review and Permanency Review for CHILDREN in NEED OF CARE AND SUPERVISION 

Whenever custody of a child in need of care or supervision is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title.  At the permanency review, the court shall consider only the permanency goal and whether the department should continue to maintain custody of the child and shall not consider the appropriateness of the particular placement chosen by the department.

and by renumbering the remaining statutory section to be numerically correct.

Twenty-second:  By deleting the renumbered Sec. 4, REPORT FROM THE DEPARTMENT FOR CHILDREN AND FAMILIES, in its entirety, and by renumbering the remaining sections to be numerically correct.

Twenty-third:  In the renumbered Sec. 4, 13 V.S.A. § 1030, by amending the catchline to read:

§ 1030.  VIOLATION OF AN ABUSE PREVENTION ORDER OR, AN ORDER AGAINST STALKING OR SEXUAL ASSAULT, OR A PROTECTIVE ORDER CONCERNING CONTACT WITH A CHILD

Twenty-fourth:  By adding a new Sec. 5 to read as follows:

Sec. 5.  Rule (3)(c)(6) of the Vermont Rules of Criminal Procedure is amended to read:

(6)  The person has violated an order issued by a court in this state pursuant to 12 V.S.A. chapter 178, 15 V.S.A. chapter 21, or 33 V.S.A. chapter 69 or subsection 5115(e).

Twenty-fifth:  By adding a new Sec. 6 to read as follows:

Sec. 6.  33 V.S.A. § 3902 is amended as follows:

§ 3902. ASSIGNMENT OF SUPPORT RIGHTS BY PUBLIC ASSISTANCE RECIPIENTS; PROCEEDINGS TO ESTABLISH SUPPORT OBLIGATION

* * *

(e)  When a responsible parent is receiving welfare assistance under Title XVI of the Social Security Act or chapter 11 of this title, on the parent’s own behalf or on behalf of a dependent child, no amounts shall accrue or be collected under the support order while the welfare assistance is being received.  The commissioner shall monitor receipt of welfare assistance by responsible parents to ensure collection action is not instituted while welfare assistance is being received and that collection action is instituted promptly when the responsible parent no longer receives assistance.

(f)  If a support order has been entered and the legal custodian and obligee relinquishes physical responsibility of the child to a caretaker without modifying the physical rights and responsibilities order, the office of child support may change the payee of support upon the caretaker’s receipt of Reach Up family assistance (RUFA) from the department for children and families.  The obligor’s obligation under the support order to pay child support and medical support continues but shall be payable to the office of child support upon the caretaker’s receipt of RUFA and shall continue so long as the assignment is in effect.  The office of child support shall notify the obligor and obligee under the support order, by first class mail at last known address, of the change of payee.

Twenty-sixth:  By adding a new Sec. 7 to read as follows:

Sec. 7.  33 V.S.A. § 3903 is amended to read:

§ 3903.  CHILD SUPPORT DEBT

(a)  Except as otherwise provided in this section, any payment of Reach Up financial assistance made to or for the benefit of a dependent child creates a debt due and owing to the department for children and families by any responsible parent in an amount equal to the amount of Reach Up financial assistance paid.

(1)  A debt shall not be incurred by any responsible parent while that parent receives public assistance for the benefit of any of his or her dependent children.  A debt previously incurred by any responsible parent shall not be collected from the responsible parent while that parent receives public assistance for the benefit of his or her dependent children, or assistance under Title XVI of the Social Security Act.

(2)(b)  Collection of child support debts shall be made as provided by this section and section 3902 of this title and by subchapter 7 of chapter 11 of Title 15.  Regardless of the amount of Reach Up financial assistance paid, the court may limit the child support debt, taking into consideration the criteria of section 659 of Title 15.  The department for children and families and the responsible parent may limit the child support debt by stipulation which shall be enforceable on its terms unless it is modified.

And by renumbering the remaining sections to be numerically correct.

(For text see House Journal 3/21/08 – PP. 683 - 726)

H. 748

     An act relating to permitting students to possess and self-administer emergency medication.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  16 V.S.A. § 1387 is added to read:

§ 1387.  POSSESSION AND SELF-ADMINISTRATION OF EMERGENCY MEDICATION

(a)  Pursuant to the requirements of this section, each public and approved independent school in the state shall permit students with life-threatening allergies or with asthma to possess and self-administer emergency medication during the school day, on school grounds, at school-sponsored activities, on school-provided transportation, and during school-related programs.

(b)  In each school year for which possession and self‑administration of emergency medication is requested, the student’s parent or guardian shall provide the school with:

(1)  Written authorization, on a form to be provided by the school, for the student to possess and self-administer emergency medication. 

(2)  Written documentation from the student’s physician:

(A)  Stating that the student has one or more life-threatening allergies or asthma or both.

(B)  Providing the name of the emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.

(C)  Affirming that the student:

(i)  Is capable of, and has been instructed by the physician in, the proper method of self-administration of the emergency medication.

(ii)  Has been advised of possible side-effects of the medication.

(iii)  Has been informed of when and how to access emergency services.

(D)  Affirming that the student has been instructed to inform the school nurse or another school employee or agent immediately after
self-administering the emergency medication.

(c)  In each school year for which possession and self‑administration of

emergency medication is requested, the student’s parent or guardian shall:

(1)  Develop, in consultation with the school nurse or the designated health care staff at an approved independent school, a plan of action regarding responding to the student’s life‑threatening allergy or allergies or asthma.  The plan of action shall be based upon the written documentation provided by the student’s physician and shall include the name of each emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.  The written plan shall prominently state that the medication is solely for the use of the student covered by the plan. 

(2)  It shall be the responsibility of the student’s parent or guardian to provide a copy of the plan of action to any school employee or agent responsible for the student before or after the normal hours of the school day; provided, however, it shall be the school’s responsibility to give a copy of the plan to the drivers of a bus providing routine transportation between the student’s home and the school, regardless of whether the transportation is operated by the school or is a service for which it contracts.

(d)  The student’s parent or guardian shall sign a statement on a form to be provided by the school, releasing the school and its employees and agents, including volunteers, from liability as a result of any injury arising from the student’s self-administration of the emergency medication, except when the conduct of the school, school employee, or agent would constitute gross negligence, recklessness, or intentional misconduct. 

(e)  Nothing in this section shall prohibit a public school district or an approved independent school from adopting school policies and individual plans of action regarding the possession and self-administration of emergency medication for medical conditions other than asthma and life-threatening allergies.

Sec. 2.  EFFECTIVE DATE

This act shall apply during the 2008–2009 academic year and after.

(For text see House Journal 3/19/08 - PP. 622-623 and House Journal of 3/20/08 – PP. 649 - 650)

Ordered to Lie

H. 549

     An act relating to establishing buffer zones along waterways of the state.

Pending question: Shall the bill be amended as recommended by the Fish Wildlife & Water Resources committee and the committee on Appropriations?



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us