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Senate Calendar

wednesday, april 16, 2008

100 DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

CONSIDERATION POSTPONED UNTIL

WEDNESDAY, APRIL 16, 2008

Resolution for Action

SR 26     People’s Republic of China’s human rights violations in Tibet........... 1386

UNFINISHED BUSINESS OF TUESDAY, APRIL 15, 2008

S. 278     Relating to financing campaigns (VETOED)..................................... 1386

                              Pending Question:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

NEW BUSINESS

Third Reading

S. 369     Recognition of tribes & bands of native Americans by the Vermont .........                   commission on native American affairs      1386

H. 884    Prekindergarten education programs through school districts............ 1386

                        Sen. Collins amendment......................................................... 1386

Second Reading

Favorable

H. 331    Financing the purchase of a mobile home......................................... 1388

                        Ec. Dev., Housing & General Affairs Committee Report......... 1388

Favorable with Proposal of Amendment

H. 635    Relating to reports of child abuse of neglect..................................... 1388

                        Health and Welfare Committee Report................................... 1388

                        Appropriations Committee Report......................................... 1412

H. 709    Relating to campgrounds................................................................. 1412

                        Ec. Dev., Housing & General Affairs Committee Report......... 1412


NOTICE CALENDAR

Favorable

H. 230    Legislative appointments to the human rights commission.................. 1413

                        Government Operations Committee Report............................ 1413

H. 809    Fire safety inspections for independent residential schools................ 1413

                        Education Committee Report................................................. 1413

Favorable with Proposal of Amendment

H. 94      Retail sales and taxing of specialty beers.......................................... 1414

                        Ec. Dev., Housing & General Affairs Committee Report......... 1414

H. 149    Liquor and tobacco identification cards........................................... 1416

                        Ec. Dev., Housing & General Affairs Committee Report......... 1416

H. 257    Codification of existing community justice centers............................ 1416

                        Judiciary Committee Report................................................... 1416

H. 332    Sale and closure of mobile home parks............................................ 1418

                        Ec. Dev., Housing & General Affairs Committee Report......... 1418

H. 615    Relating to juvenile judicial proceedings........................................... 1433

                        Judiciary Committee Report................................................... 1433

H. 700    Sale of bottles of wine at festivals.................................................... 1473

                        Ec. Dev., Housing & General Affairs Committee Report......... 1473

                        Sen. Illuzzi amendment........................................................... 1473

H. 748    Permit students to possess and self-administer emergency meds....... 1476

                        Education Committee Report................................................. 1476

House Proposal of Amendment

S. 146     Advertising and producing musical performances............................. 1478

Constitutional Amendments

(Fourth Day on Notice Calendar)

Prop. 1   General assembly, organizational session......................................... 1478

                        Government Operations Committee Report............................ 1478

(Third Day on Notice Calendar)

Prop. 5   Elections; voter’s oath; self-administration....................................... 1480

                        Government Operations Committee Report............................ 1480

ORDERED TO LIE

S. 70       Empowering municipalities to regulate pesticides.............................. 1481


S. 102     School dist. excess spending........................................................... 1481

S. 108     Electing U.S. Representative & U.S. Senator by instant runoff......... 1481

S. 118     Fiscal review of high spending school districts.................................. 1481

S. 211     Soliciting or architect proposals by a school district.......................... 1481

S. 348     Education/workforce training for children between ages 16 &18...... 1482

JRS 24   Congressional “fast track” review of trade agreements..................... 1482



 

ORDERS OF THE DAY

ACTION CALENDAR

CONSIDERATION POSTPONED UNTIL WEDNESDAY,

APRIL 16, 2008

Resolution for Action

S.R. 26

Senate resolution relating to expressing strong opposition to, and urging effective and immediate congressional action to stop, the government of the People’s Republic of China’s human rights violations in the geographic area known as Tibet.

(For text of Resolution, see Senate Journal of April 9, 2008, page 583)

UNFINISHED BUSINESS OF TUESDAY, APRIL 15, 2008

S. 278

An act relating to financing campaigns.

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

NEW BUSINESS

Third Reading

S. 369

An act relating to recognition of tribes and bands of native Americans by the Vermont commission on native American affairs.

H. 884

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

PROPOSAL OF AMENDMENT TO H. 884 TO BE OFFERED BY SENATOR COLLINS BEFORE THIRD READING

Senator Collins, on behalf of the Committee on Education, moves that the Senate propose to the House to amend the bill by adding two new sections to be numbered Sec. 4 and Sec. 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 as counted in the census period of the previous five years; multiplied by

(bb)  the most immediately previous year’s first grade census count one-fifth of the total number of children in grades 1–5 who are included in the district’s average daily membership for the previous year; or

(III)  the total number of four-year-olds in the district  the total number of children enrolled in the prekindergarten program or programs 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.

Second Reading

Favorable

H. 331

An act relating to financing the purchase of a mobile home.

Reported favorably by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

(Committee vote: 5-0-0)

Favorable with Proposal of Amendment

H. 635

An act relating to reports of child abuse or neglect.

Reported favorably with recommendation of proposal of amendment by Senator Racine for the Committee on Health and Welfare.

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

Sec. 1.  33 V.S.A. § 4911 is amended to read:

§ 4911.  Purpose

The purpose of this subchapter is to:

(1)  protect Protect children whose health and welfare may be adversely affected through abuse or neglect;.

(2)  strengthen Strengthen the family and make the home safe for children whenever possible by enhancing the parental capacity for good child care;.

(3)  provide Provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes require the reporting of suspected child abuse and neglect, an assessment or investigation of such reports and provision of services, when needed, to such child and family.

(4)  Establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and which recognize that child offenders should be treated differently from adults.

(5)  Establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect. 

Sec. 2.  33 V.S.A. § 4912 is amended to read:

§ 4912.  Definitions

As used in this subchapter:

(1)  “Child” means an individual under the age of majority.

(2)  An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare.  An “abused or neglected child” also means a child who is sexually abused or at substantial risk of sexual abuse by any person.

(3)  “Harm” can occur by:

(A)  Physical injury or emotional maltreatment;

(B)  Failure to supply the child with adequate food, clothing, shelter, or health care.  For the purposes of this subchapter, “adequate health care” includes any medical or nonmedical remedial health care permitted or authorized under state law.  Notwithstanding that a child might be found to be without proper parental care under chapter 55 of Title 33, a parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone; or

(C)  Abandonment of the child.

(4)  “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.

(5)  “A person responsible for a child’s welfare” includes the child’s parent; guardian; foster parent; any other adult residing in the child’s home who serves in a parental role; an employee of a public or private residential home, institution or agency; or other person responsible for the child’s welfare while in a residential, educational, or child care setting, including any staff person.

(6)  “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.

(7)  “Emotional maltreatment” means a pattern of malicious behavior which results in impaired psychological growth and development.

(8)  “Sexual abuse” consists of any act or acts by any person involving sexual molestation or exploitation of a child including but not limited to incest, prostitution, rape, sodomy, or any lewd and lascivious conduct involving a child.  Sexual abuse also includes the aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts a sexual conduct, sexual excitement or sadomasochistic abuse involving a child.

(9)  “Multi‑disciplinary team” means a group of professionals, paraprofessionals and other appropriate individuals, empanelled by the commissioner of social and rehabilitation services under this chapter, for the purpose of assisting in the identification and investigation review of cases of child abuse and neglect, coordinating treatment services for abused and neglected children and their families and promoting child abuse prevention.

(10)  “Substantiated report” means that the commissioner or the commissioner’s designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.

(11)  [Repealed.]

(12)  “Member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner. 

(13)  “Redacted investigation file” means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in subsection 4913(d) of this title.

(14)  “Child abuse and neglect protection registry” means a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.

(15)  “Registry record” means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(16)  “Investigation” means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response.  An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.

(17)  “Assessment” means a response to a report of child abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family, and any services they may require to improve or restore their well-being and to reduce the risk of future harm.  The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.

Sec. 3.  33 V.S.A. § 4913 is amended to read:

§ 4913.  REPORTING SUSPECTED CHILD ABUSE AND NEGLECT;

(a)  Any physician, surgeon, osteopath, chiropractor, or physician’s assistant licensed, certified, or registered under the provisions of Title 26, any resident physician, intern, or any hospital administrator in any hospital in this state, whether or not so registered, and any registered nurse, licensed practical nurse, medical examiner, emergency medical personnel as defined in 24 V.S.A. § 2651(6), dentist, psychologist, pharmacist, any other health care provider, child care worker, school superintendent, school teacher, school librarian, child care worker, school principal, school guidance counselor, and any other individual who is regularly employed by a school district, or who is contracted and paid by a school district to provide student services for more than 10 hours per week during the school year, mental health professional, social worker, probation officer, police officer, camp owner, camp administrator, camp counselor, or member of the clergy who has reasonable cause to believe that any child has been abused or neglected shall report or cause a report to be made in accordance with the provisions of section 4914 of this title within 24 hours.  As used in this subsection, “camp” includes any residential or nonresidential recreational program.

(b)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title. The commissioner shall inform the person who made the report under subsection (a) of this section:

(1)  whether the report was accepted as a valid allegation of abuse or neglect;

(2)  whether an assessment was conducted and, if so, whether a need for services was found; and

(3)  whether an investigation was conducted and, if so, whether it resulted in a substantiation.

(c)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.

(c)(d)(1)  Any person enumerated in subsection (a) or (b) of this section, other than a person suspected of child abuse, who in good faith makes a report to the department of social and rehabilitation services shall be immune from any civil or criminal liability which might otherwise be incurred or imposed as a result of making a report. 

(2)  An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter.  Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

(d)(e)  The name of and any identifying information about either the person making the report or any person mentioned in the report shall be confidential unless:

(1)  the person making the report specifically allows disclosure or unless;

(2)  a human services board proceeding or a judicial proceeding results therefrom or unless;

(3)  a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available; or

(4)  a review has been requested pursuant to section 4916a of this title, and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.

(e)(f)(1)  A person who violates subsection (a) of this section shall be fined not more than $500.00.

(2)  A person who violates subsection (a) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.

(3)  This section shall not be construed to prohibit a prosecution under any other provision of law.

(f)(g)  Except as provided in subsection (g)(h) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.

(g)(h)  A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication which is:

(1)  made to a member of the clergy acting in his or her capacity as spiritual advisor;

(2)  intended by the parties to be confidential at the time the communication is made;

(3)  intended by the communicant to be an act of contrition or a matter of conscience; and

(4)  required to be confidential by religious law, doctrine, or tenet.

(h)(i)  When a member of the clergy receives information about abuse or neglect of a child in a manner other than as described in subsection

(g)(h) of this section, he or she is required to report on the basis of that information even though he or she may have also received a report of abuse or neglect about the same person or incident in the manner described in subsection (g)(h) of this section. 

Sec. 4.  33 V.S.A. § 4914 is amended to read:

§ 4914.  NATURE AND CONTENT OF REPORT; TO WHOM MADE

A report shall be made orally or in writing to the commissioner for children and families or designee.  The commissioner or designee shall request the reporter to follow the oral report with a written report, unless the reporter is anonymous.  Reports shall contain the name and address or other contact information of the reporter as well as the names and addresses of the child and the parents or other persons responsible for the child’s care, if known; the age of the child; the nature and extent of the child’s injuries together with any evidence of previous abuse and neglect of the child or the child’s siblings; and any other information that the reporter believes might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family.  If a report of child abuse or neglect involves the acts or omissions of the commissioner for children and families or employees of that the department, then the report shall be directed to the secretary of the agency of human services who shall cause the report to be investigated by other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915 4915b of this title.

Sec. 5.  33 V.S.A. § 4915 is amended to read:

§ 4915.  ASSESSMENT AND INVESTIGATION; REMEDIAL ACTION

(a)  Upon receipt of a report of abuse or neglect, the department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title.  The department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont. 

(b)  If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title.  The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed.  The commissioner may waive the 72-hour requirement only when necessary to locate the child who is the subject of the allegation or to ensure the safety of the child or social worker.

(c)  The decision to conduct an assessment shall include consideration of the following factors:

(1)  the nature of the conduct and the extent of the child’s injury, if any;

(2)  the accused person’s prior history of child abuse or neglect, or lack thereof; and

(3)  the accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation. 

(d)  The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment.  For purposes of this section, “substantial child endangerment” includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury.  The department may conduct an investigation of any report.

(e)  The department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.

(f)  The department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to evaluate risk to a child and to determine the service needs of the child and family.  The department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.

 (b)  The investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with, or observance of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, child care provider regulated by the department, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(6)  A determination of the immediate and long-term risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(c)  For cases investigated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.

(d)  The commissioner, designee, or any person required to report under section 4913 or any other person performing an investigation pursuant to section 4914 may take or cause to be taken, photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated as appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination, without the consent of the child’s parent or guardian.

(e)  Services may be provided to the child’s immediate family whether or not the child remains in the home.

(f)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect of a child likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

Sec. 6.  33 V.S.A. § 4915a is added to read:

§ 4915a.  Procedures for Assessment

(a)  An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular valid allegation of child abuse or neglect, shall include the following:

(1)  An interview with the child’s parent, guardian, foster parent, or any other adult residing in the child’s home who serves in a parental role.  The interview shall focus on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.

(2)  An evaluation of the safety of the subject child and any other children living in the same home environment.  The evaluation may include an interview with or observation of the child or children.  Such interviews or observations shall occur with the permission of the child’s parent, guardian, or custodian.

(3)  In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being. 

(b)  The assessment shall be completed within 45 days.  Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.

(c)  Families have the option of declining the services offered as a result of the assessment.  If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation or to request the state’s attorney to file a petition pursuant to chapter 55 of this title.  In no instance shall a case be investigated solely because the family declines services.

(d)  When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the registry.  However, the department shall document the outcome of the assessment.

Sec. 7.  33 V.S.A. § 4915b is added to read:

§ 4915b.  Procedures for Investigation

(a)  An investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with or observation of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, a child care provider regulated by the department, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(6)  A determination of the immediate and long‑term risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(b)  For cases investigated and substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family.  For cases investigated but not substantiated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.  Nothing contained in this section or section 4915a of this title shall be deemed to create a private right of action.

(c)  The commissioner, designee, or any person required to report under section 4913 of this title or any other person performing an investigation may take or cause to be taken photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination without the consent of the child’s parent or guardian. 

(d)  Services may be provided to the child’s immediate family whether or not the child remains in the home. 

(e)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

(f)  The department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.

Sec. 8.  33 V.S.A. § 4916 is amended to read:

§ 4916.  CHILD ABUSE AND NEGLECT PROTECTION REGISTRY; RECORDS OF ABUSE AND NEGLECT  

(a)(1)  The commissioner shall maintain a abuse and neglect child protection registry which shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.  Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the registry, the commissioner shall comply with the procedures set forth in section 4916a of this title.

(2)  In cases involving sexual abuse or serious physical abuse of a child, the commissioner in his or her sole judgment may list a substantiated report on the registry pending any administrative review after:

(A)  Reviewing the investigation file.

(B)  Making written findings in consideration of:

(i)  the nature and seriousness of the alleged behavior; and

(ii)  the person’s continuing access to children.

(3)  A person alleged to have abused or neglected a child and whose name has been placed on the registry in accordance with subdivision (2) of this subsection shall be notified of the registry entry, provided with the commissioner’s findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.

(4)  If the name of a person has been placed on the registry in accordance with subdivision (2) of this subsection, it shall be removed from the registry if the substantiation is rejected after an administrative review.

(b)  A registry record means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(c)  The commissioner shall adopt rules to permit use of the registry records as authorized by this subchapter while preserving confidentiality of the registry and other department records related to abuse and neglect.

(d)  Registry records shall only be disclosed to the commissioner or person designated by the commissioner to receive such records, persons assigned by the commissioner to investigate reports, the person reported on, an employer as defined in subsection 4919(e) of this title, or a state’s attorney or the attorney general. In no event shall registry records be made available for employment purposes other than as set forth in section 309 or 4919 of this title, or for credit purposes. Any person who violates this subsection shall be fined not more than $500.00. 

For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the commissioner shall create a registry record that reflects a designated child protection level related to the risk of future harm to children.  This system of child protection levels shall be based upon an evaluation of the risk the person responsible for the abuse or neglect poses to the safety of children.  The risk evaluation shall include consideration of the following factors:

(A)  the nature of the conduct and the extent of the child’s injury, if any;

(B)  the person’s prior history of child abuse or neglect as either a victim or perpetrator;  

(C)  the person’s response to the investigation and willingness to engage in recommended services; and

(D)  the person’s age and developmental maturity.

(e)(1)  Verbal Notice. The commissioner or the commissioner’s designee shall promptly inform a parent or guardian of the child that a report has been made and substantiated. If a parent or guardian is under investigation for abuse or neglect, such information need only be provided to that parent or guardian in accordance with subsection 4916(d) of this title.

(2)  Written Records. Absent good cause shown by the department, if a report has been substantiated, the commissioner or the commissioner’s designee shall provide upon request the redacted investigation file to the child’s parent or guardian or, if there is a pending juvenile proceeding or if the child is in custody of the commissioner, to the child’s attorney.

The commissioner shall develop rules for the implementation of a system of child protection registry levels for substantiated cases.  The rules shall address:

(1)  the length of time a person’s name appears on the registry;

(2)  when and how names are expunged from the registry;

(3)  whether the person is a juvenile or an adult;

(4)  whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and

(5)  whether a family court has made any findings against the person.

(f)(1)  The commissioner or the commissioner’s designee may inform the following persons that a report has been substantiated:

(A)  The person responsible for supervising the staff in the child’s residential, educational or child care setting.

(B)  Upon request, to the person who made the report under subsection 4913(a) of this title.

(C)  Any person authorized by law to receive such information.

(2)  A person receiving information under this subsection shall not disclose that information to persons who are not involved with the provision of treatment services under section 4915 of this title to the abused or neglected child.

Sec. 9.  33 V.S.A. § 4916a is amended to read:

§ 4916a.  CHALLENGING PLACEMENT ON THE REGISTRY

(a)  If an investigation conducted in accordance with section 4915 4915b of this title results in a determination that a report of child abuse or neglect should be substantiated, the department shall notify the person alleged to have abused or neglected a child of the following:

(1)  The nature of the substantiation decision, and that the department intends to enter the record of the substantiation into the registry.

(2)  Who has access to registry information and under what circumstances.

(3)  The implications of having one’s name placed on the registry as it applies to employment, licensure, and registration.

(4)  The right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review.

(5)  The right to receive a copy of the commissioner’s written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.

(b)  Under this section, notice by the department to a person alleged to have abused or neglected a child shall be by first class mail sent to the person’s last known address.

(c)(1)  A person alleged to have abused or neglected a child may seek an administrative review of the department's intention to place the person's name on the registry by notifying the department within 14 days of the date the department mailed notice of the right to review in accordance with subsections (a) and (b) of this section.  The commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the department has mailed notice of the right to review.

(2)  The administrative review may be stayed upon request of the person alleged to have committed abuse or neglect if there is a related case pending in court.  During the period the review is stayed, the person’s name shall be placed on the registry with an additional entry that the substantiation decision has been appealed.  Any authorized individual inquiring whether the person’s name is on the registry shall be informed that the name is on the registry and the substantiation decision has been appealed.  The court where the case is being adjudicated shall inform the registry review unit when the case is concluded.

(d)  The department shall hold an administrative review conference within 14 35 days of receipt of the request for review.  At least seven ten days prior to the administrative review conference, the department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing testimony.  The department shall also provide to the person those redacted investigation files that relate to prior investigations that the department has relied upon to make its substantiation determination in the case in which a review has been requested.

(e)  At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation.  The department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person.  Upon the person’s request, the conference may be held by teleconference.

(f)  The department shall establish an administrative case review unit within the department and contract for the services of administrative reviewers.  An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation. 

(g)  Within seven days of the conference, the administrative reviewer shall:

(1)  reject the department’s substantiation determination;

(2)  accept the department’s substantiation; or

(3)  place the substantiation determination on hold and direct the department to further investigate the case based upon recommendations of the reviewer.

(h)  If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately.  If the reviewer rejects the department’s substantiation determination, no registry record shall be made.

(i)  Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision.  If the administrative reviewer accepts the department's substantiation, the notice shall advise the person of the right to appeal the administrative reviewer's decision to the human services board in accordance with section 4916b of this title.

(j)  Persons whose names were placed on the registry on or after January 1, 1992 but prior to July September 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation pursuant to this section.

(k)  If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section.  The commissioner may grant a waiver and permit such a review upon good cause shown.  Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.

(l)  In exceptional circumstances, the commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer.  A commissioner’s decision that creates a registry record may be appealed to the human services board in accordance with section 4916b of this title.

Sec. 10.  33 V.S.A. § 4916c is amended to read:

§ 4916c.  PETITION FOR EXPUNGEMENT FROM THE REGISTRY

(a)  A person whose name has been placed on the registry prior to July 1, 2009 and has been listed on the registry for at least seven three years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  A person whose name has been placed on the registry on or after July 1, 2009 and has been listed on the registry for at least seven years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  The commissioner shall grant a review upon request.

(b)  The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well‑being of children.  Factors to be considered by the commissioner shall include:

(1)  The nature of the substantiation that resulted in the person’s name being placed on the registry.

(2)  The number of substantiations, if more than one.

(3)  The amount of time that has elapsed since the substantiation.

(4)  The circumstances of the substantiation that would indicate whether a similar incident would be likely to occur.

(5)  Any activities that would reflect upon the person’s changed behavior or circumstances, such as therapy, employment, or education.

(6)  References that attest to the person’s good moral character.

(c)  At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement.  Upon the person’s request, the review may be held by teleconference.

(d)  A person may seek a review under this section no more than once every 36 months. 

(e)  Within 30 days of the date on which the commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the human services board.  The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the board shall be whether the commissioner abused his or her discretion in denial of the petition for expungement.  The hearing shall be on the record below, and determinations of credibility of witnesses made by the commissioner shall be given deference by the board.

(f)  The department shall take steps to provide reasonable notice to persons on the registry of their right to seek an expungement under this section.  Actual notice is not required.   Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the department website, and other approaches typically taken by the department to inform the public about the department’s activities and policies.  The department shall send notice of the expungement process to any person listed on the registry for whom a registry check has been requested.

Sec. 11.  33 V.S.A. § 4916d is amended to read:

§ 4916d.  AUTOMATIC EXPUNGEMENT OF REGISTRY RECORDS

  OF MINORS

Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated registry entries.  A registry record shall not be made of a person substantiated for behavior occurring before the person reached 11 years of age, except in extraordinary circumstances.  A person substantiated for behavior occurring after the person reached 11 but before 18 years of age and whose name has been listed on the registry for at least three years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record in accordance with section 4916c of this title.  

Sec. 12.  33 V.S.A. § 4917 is amended to read:

§ 4917.  Multi-disciplinary teams; empaneling

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day child care, education, law or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(c)  The empanelling of a multi-disciplinary team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

Sec. 13.  33 V.S.A. § 4918 is amended to read:

§ 4918.  Multi-disciplinary teams; functions; guidelines

(a)  Multi-disciplinary teams shall assist local district offices of the department of social and rehabilitation services in identifying and treating child abuse and or neglect cases.  With respect to any case referred to it, the team shall may assist the district office by providing:

(1)  case diagnosis or identification,;

(2)  a comprehensive treatment plan,; and

(3)  coordination of services pursuant to the treatment plan.

(b)  Multi-disciplinary teams may also provide public informational and educational services to the community about identification, treatment and prevention of child abuse and neglect.  It shall also foster communication and cooperation among professionals and organizations in its community, and provide such recommendations or changes in service delivery as it deems necessary.

Sec. 14.  33 V.S.A. § 4919 is amended to read:

§ 4919.  DISCLOSURE OF INFORMATION REGISTRY RECORDS

(a)  The commissioner or the commissioner’s designee may disclose a registry information record only as set forth in section 4916 of this title or as follows:

(1)  To the state’s attorney or the attorney general;.

(2)  To the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license or, registration, certification, or authorization as set forth in section 309 of this title;.

(3)  To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry record to the employer;.  The employer shall not disclose the information contained in the registry report.

(4)  To the commissioner commissioners of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living; those departments.

(5)  To the commissioner commissioners of health or, of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the departments of health and of disabilities, aging, and independent living, those departments, including persons to whom a conditional offer of employment has been made;.

(6)  Upon request or when relevant to other states’ adult protective services offices; and.

(7)  Upon request or when relevant to other states’ child protection agencies.

(8)  To the person substantiated for child abuse and neglect who is the subject of the record.

(b)  An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (a)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter.  An employer shall provide such records at the request of the agency or its designee.  Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.

(c)  Volunteers shall be considered employees for purposes of this section.

(d)  Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.

(e)  “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis. 

(f)  In no event shall registry records be made available for employment purposes other than as set forth in this subsection, or for credit purposes.  Any person who violates this subsection shall be fined not more than $500.00.

(g)  Nothing in this subsection shall limit the department’s right to use and disclose information from its records as provided in section 4921 of this chapter.

Sec. 15.  33 V.S.A. § 4920 is amended to read:

§ 4920.  Retaliatory action by employer prohibited

An employer or supervisor shall not discharge, demote, transfer, reduce pay, benefits or work privileges, prepare a negative work performance evaluation or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

Sec. 16.  33 V.S.A. § 4921 is added to read:

§ 4921.  Department’s Records of abuse and neglect

(a)  The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter.  The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.

(b)  The commissioner shall promptly inform the parents, if known, or guardian of the child that a report has been accepted as a valid allegation pursuant to subsection 4915(b) of this title and the department’s response to the report.  The department shall inform the parent or guardian of his or her ability to request records pursuant to subsection (c) of this section.

(c)  Upon request, the redacted investigation file shall be disclosed to:

(1)  the child’s parents, foster parent, or guardian, absent good cause shown by the department, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation; and

(2)  the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title.

(d)  Upon request, department records created under this subchapter shall be disclosed to:

(1)  the court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner;

(2)  the commissioner or person designated by the commissioner to receive such records; 

(3)  persons assigned by the commissioner to conduct investigations;

(4)  law enforcement officers engaged in a joint investigation with the department, an assistant attorney general, or a state’s attorney;

(5)  other state agencies conducting related inquiries or proceedings; and 

(6)  probate courts involved in guardianship proceedings.  The probate court shall provide a copy of the record to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.

(e)(1)  Upon request, relevant department records created under this subchapter may be disclosed to:

(A)  service providers working with a person or child who is the subject of the report; and

(B)  other governmental entities for purposes of child protection.

(2)  Determinations of relevancy shall be made by the department.

Sec. 17.  33 V.S.A. § 4922 is added to read:

§ 4922.  RULEMAKING

(a)  The commissioner shall develop rules to implement this subchapter. These shall include:

 (1)  rules setting forth criteria for determining whether to conduct an assessment or an investigation;

(2)  rules setting out procedures for assessment and service delivery;

(3)  rules outlining procedures for investigations;

(4)  rules for conducting the administrative review conference;

(5)  rules regarding access to and maintenance of department records of investigations, assessments, reviews, and responses;

(6)  rules regarding the tiered registry as required by section 4916 of this title; and

(7)  rules setting forth criteria for determining what substantiated behavior constitutes extraordinary circumstances for the purpose of placing the name of a person under 11 years of age on the child protection registry.

(b)  The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents.  The rules shall include the possible use of adaptive equipment and supports.

(c)  These rules shall be adopted no later than July 1, 2009.

Sec. 18.  33 V.S.A. § 4923 is added to read:

§ 4923.  REPORTING

The commissioner shall publish an annual report regarding reports of child abuse and neglect no later than June 30, for the previous year.  The report shall include:

(1)  The number of reports accepted as valid allegations of child abuse or neglect.

(2)  The number of reports that resulted in an investigative response; particularly:

(A)  the number of investigations which resulted in a substantiation;

(B)  the types of maltreatment substantiated;

(C)  the relationship of the perpetrator to the victim, by category; and

(D)  the gender and age group of the substantiated victims.

(3)  The number of reports that resulted in an assessment response; particularly:

(A)  the general types of maltreatment alleged in cases which received an assessment response; and

(B)  the number of assessments that resulted in the recommendation of services.

(4)  Trend information over a five-year period.  Beginning with the adoption of the assessment response and continuing over the next five years, the report shall explain the impact of the assessment response on statistical reporting.

Sec. 19.  EFFECTIVE DATES

(a)  Sec. 3 of this act shall take effect on January 1, 2009.

(b)  In Sec. 5 of this act, the amendments in 33 V.S.A. § 4915(b), (c), (d), and (e) shall take effect upon adoption of final rules by the department for children and families.

(c)  Sec. 6 of this act shall take effect upon adoption of final rules by the department for children and families.

(d)  Sec. 9 of this act shall take effect on September 1, 2008.

Sec. 20.  DEPARTMENT FOR CHILDREN AND FAMILIES–FAMILY SERVICES

The establishment of twelve (12) classified service positions-social worker-is authorized in fiscal year 2009.  These positions shall be supported with funds from the existing appropriation.

(Committee Vote: 6-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Bartlett for the Committee on Appropriations.

The Committee recommends that the proposal of amendment of the Committee on Health and Welfare be amended by striking out Sec. 20 in its entirety.

(Committee Vote: 5-0-2)

(For House amendments, see House Journal for March 21. 2008, page 656;  March 25, 2008, page 739.)

H. 709

An act relating to campgrounds.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the Senate propose to the House to amend the bill by adding a new Sec. 3 to read as follows:

Sec. 3.  Chapter 138. Campgrounds is added to Title 9, to read as follows:

Chapter 138. CAMPGROUNDS

§4470.  CAMPGROUNDS; REMOVAL

(a)  Definition.  A recreational campground or camping park is property where transient residence is offered or provided for seasonal or short-term vacation or recreational purposes on which may be located cabins, tents, or lean-tos or campsites designed for temporary set-up of portable or mobile camping, recreational, or travel dwelling units including tents, campers, and recreational vehicles such as motor homes, travel trailers, truck campers, and van campers.

(b)  An owner, operator, or agent of a recreational campground or camping park may remove or cause to be removed from a recreational campground or camping park any person who does any of the following:

(1)  refuses to pay registration or fees;

(2)  denies others the right to quiet enjoyment of the use of the recreational campground or camping park;

(3)  violates any municipal or state law; or

(4)  violates the published or posted rules of the recreational campground or camping park.

(c)  A person who refuses to immediately leave the property after he or she has been told to do so by the owner, operator, or agent shall be in violation of 13 V.S.A. §3705(a) and may be prosecuted for unlawful trespass.  If any conduct involves the use of a motor vehicle, the person may be prosecuted for any applicable violation of Title 23.  For the purposes of this section, the property on which a campground or camp park is located shall be considered open to the free flow and circulation of traffic.  The person may be removed from the premises by a law enforcement officer on request of the owner, operator, or agent.

(d)  The owner, operator, or agent shall employ reasonable means to protect any personal property left at a campground or camping park by a person who has left or has been removed.  A reasonable storage fee which is published or posted may be charged for any personal property left at the campground or camping park.  If the owner does not take possession of the personal property within six months of the date the property has been left at the campground, the owner, operator or agent may dispose of it in a commercial reasonable manner and then pay to the owner the sale proceeds less any storage and sales fees incurred.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for February 28, 2008, page 411.)

NOTICE CALENDAR

Favorable

H. 230

An act relating to legislative appointments to the human rights commission.

Reported favorably by Senator Ayer for the Committee on Government Operations.

(Committee vote: 5-0-0)

(For House amendments, see House Journal for April 8, 2008, page 884.)

H. 809

An act relating to requiring annual fire safety inspections for approved independent residential schools.

Reported favorably by Senator Giard for the Committee on Education.

(Committee vote: 4-1-0)

(For House amendments, see House Journal for March 19, 2008, page 615.)

Favorable with Proposal of Amendment

H. 94

An act relating to retail sales and taxing of specialty beers.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

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

Sec. 1.  7 V.S.A. § 2(11), (14) and (20) are amended to read:

(11)  “Hotels”: a first class hotel as determined by the liquor control board Specialty beer” means a malt beverage that contains more than eight percent alcohol and not more than 16 percent alcohol by volume at 60 degrees Fahrenheit.  

(14)  “Malt beverages”:  all fermented beverages of any name or description manufactured for sale from malt, wholly or in part, or from any substitute therefor therefore, known as beer, porter, ale, and stout, containing not less than one percent nor more than eight 16 percent of alcohol by volume at 60 degrees fahrenheit Fahrenheit.  However, if such a beverage has an alcohol content of more than six percent and not more than eight percent and has a terminal specific gravity of less than 1.009, it shall be deemed to be a spirit and not a malt beverage.  The holder of the certificate of approval or the manufacturer shall certify to the liquor control board the terminal specific gravity of the beverage when the alcohol content is more than six percent and not more than eight percent.           

(20)  “Spirits”:  beverages for sale containing more than one percent of alcohol obtained by distillation, by chemical synthesis, or through concentration by freezing; and vinous beverages containing more than 16 percent of alcohol; and all vermouths of any alcohol content; malt beverages containing more than eight 16 percent of alcohol or more than six percent of alcohol if the terminal specific gravity thereof is less than 1.009; in each case measured by volume at 60 degrees fahrenheit Fahrenheit.

Sec. 2.  7 V.S.A. § 421(a) is amended to read:

§ 421.  TAX ON MALT AND VINOUS BEVERAGES

(a)  Every bottler and wholesaler shall pay to the commissioner of taxes the sum of 26 and one-half cents per gallon for every gallon or its equivalent of malt beverage containing not more than six percent of alcohol by volume at 60 degrees fahrenheit sold by them to retailers in the state and the sum of 55 cents per gallon for each gallon of malt beverage containing more than six percent and not more than eight percent of alcohol by volume at 60 degrees fahrenheit and each gallon of vinous beverages sold by them to retailers in the state and shall also pay to the liquor control board all fees for bottler’s and wholesaler’s licenses.

Sec. 3.  STUDY OF FLAVORED MALT BEVERAGES; DEPARTMENT OF  LIQUOR CONTROL

(a)  The department of liquor control shall study and identify best practices for the marketing, sale, and taxation of flavored malt beverages, commonly called “alcopops,” malt based beverages containing other ingredients such as flavored distilled spirits, and “alcohol energy drinks,”  which are malt beverages continuing other ingredients such as caffeine.  The department shall consider the following:

(1)  Whether these beverages should be considered spirits, malt beverages, or a completely separate category of alcoholic beverages.

(2)  Whether these beverages and other flavored malt beverages should be distributed by wholesalers or the department.

(3)  The impact and future implications of these beverages in regard to controlling underage drinking and other public health and safety concerns.

(4)  Whether these beverages should be taxed at the lower malt beverage rate, the higher spirits rate, or a different tax rate.

(5)  Legislative and regulatory activities undertaken by other states in regard to these beverages.

(b)  The department shall complete the study and issue a written report of its findings, conclusions, and recommendations on or before January 1, 2009.  The report shall be provided to the house committees on general, housing and military affairs, and on ways and means and the senate committees on economic development, housing and general affairs and on finance.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for April 11, 2007, page 591.)


H. 149

An act relating to liquor identification and tobacco licenses.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the Senate propose 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,

(Committee Vote: 5-0-0)

(No House amendments.)

H. 257

An act relating to codification of existing community justice centers.

Reported favorably with recommendation of proposal of amendment by Senator Cummings for the Committee on Judiciary.

The Committee recommends that the Senate propose 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.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 19, 2008, page 619.)

H. 332

An act relating to sale and closure of mobile home parks.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

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

Sec. 1.  10 V.S.A. § 6201(5), (6) and (7) are amended to read:

(5)  “Leaseholder” means a resident lawfully occupying a mobile home owned by the park owner or the owner of a mobile home sited on a mobile home lot in a mobile home park regardless of whether the leaseholder has actual possession of a written lease.

(6)  “Mobile home park resident” or “resident” means an individual, individuals, or family who occupies a mobile home on a permanent or temporary basis in a mobile home park as that term is defined in subdivision (2) of this section.

(7)  “Mobile home park owner” or “park owner” means the owners, operators, officers, or managing agents of a mobile home park as well as any person acting through any corporate or other device who has the practical authority to establish rules, policies, or other requirements for the operation of the mobile home park.  The term shall not include a stockholder for a corporation owning stock in a mobile home park unless such stockholder has a controlling interest in the corporation and has the practical authority to establish rules, policies or other requirements for the operation of the mobile home park.

Sec. 2.  10 V.S.A. § 6204(c) is amended to read:

(c)  To the extent that they are consistent with this chapter, the provisions of chapter 137 of Title 9 (residential rental agreements) and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy and rental of a mobile home but not and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the rental of a mobile home lot.

Sec. 3.  10 V.S.A. § 6205(c) is amended to read:

(c)  A resident of a mobile home park leaseholder may bring an action against a the park owner for a violation of sections 6236-6243 of this title.  The action shall be filed in district court for the district in which the alleged violation occurred.  If the resident's leaseholder’s claim against the owner exceeds the jurisdictional limit of the district court, an action may be brought in superior court in the county in which the alleged violation occurred. No action may be commenced by the resident leaseholder unless the resident leaseholder has first notified the park owner of the violation by certified mail at least 30 days prior to bringing the action.  During the pendency of an action brought by a resident leaseholder, the resident leaseholder shall pay rent in an amount designated in the lease, or as provided by law, which rental amount shall be deposited in an escrow account as directed by the court.

Sec. 4. 10 V.S.A. § 6231 is amended to read:

§ 6231.  Rules

* * *

(b)  The department of housing and community affairs may adopt rules to carry out the provisions of sections 6236-6243 of this title into effect.  The department shall seek advice and comment from the advisory commission prior to adopting rules.

(c)  A mobile home park that has been closed pursuant to subdivision 6237(a)(5) section 6237a of this title and reduced to no more than two occupied leased lots, shall be required, if the number of occupied leased lots subsequently is increased to more than two, to obtain all state land use and environmental permits required for a mobile home park that has been established or expanded after May 31, 1970.

Sec. 5.  10 V.S.A. § 6236(a), (b), (c), (d), (e), and (f) are amended to read:

(a) All terms governing the rental use and occupancy of a mobile home lot shall be contained in a written lease which shall be furnished to all mobile home residents. Mobile home park owners shall promulgate reasonable and fair lease terms governing the rental use and occupancy of a mobile home lot and shall furnish an initial copy of the lease to all mobile home residents leaseholders. Any lease term which that prohibits or in any other manner obstructs the ability of any park leaseholder to act in accordance with the provisions of this chapter shall be unenforceable. Any lease term which that is not uniformly applied to all mobile home residents leaseholders of the same or a similar category shall be unenforceable, except that an a park owner may establish a different lot rent rate for a mobile home park constructed after June 1, 1995, or for new lots in an expanded mobile home park constructed after June 1, 1995.  Mobile home park owners shall not restrict access by representatives of the department to the leaseholders of the park.

(b)  A lease term requiring the removal from a mobile home park of a mobile home which that is detrimental to the other tenants residents of the park for either health, safety or aesthetic reasons shall not be considered unreasonable or unfair.

(c)  A prospective resident Prospective leaseholders shall be furnished with a copy of the proposed lease prior to any agreement to lease use or occupy a mobile home lot, and upon acceptance of the lease terms the lease shall be signed by the lessor and lessee.  Any provision in a lease governing rental and utility charges shall be effective for a minimum of one year, except in the case of a new tenant leaseholder in a mobile home park in which there is a uniform rent schedule which that affects all lots in that park simultaneously.  The initial lease for a new tenant leaseholder may include the anticipated increase in the rent and utility charge at the time it occurs for the other lots.  A mobile home park owner shall provide residents leaseholders with a minimum of 60 days notice prior to any rent increase.  Rent increase notices shall not be given within six months prior to the issuance of a closure notice or at any time during which the closure notice is in effect.  All rent increases received by the park owner during the six months prior to the issuance of a closure notice shall be returned to the affected leaseholders within seven days of issuance of the closure notice, except when the commissioner determines the rent increase is needed to help remedy an emergency situation that affects the resident’s health, safety, or welfare.  This subsection shall not apply to proprietary leases in mobile home parks owned by limited equity housing cooperatives established under chapter 14 of Title 11.  The rental and utility charge may be increased during a year if the operating expenses of the park increase 20 percent or more during that year as the result of legislative action taken during that year and the increase could not have been anticipated.  The rental and utility charge may be increased during a year only to the extent necessary to cover the increase in operating expenses of the park.

(d)  No person shall sell, lease, or sublease a mobile home resident may sublet the resident's mobile home without the express permission or sublease or assign a lease for a lot in a mobile home park without first obtaining the written approval of the park owner, which shall not be unreasonably withheld.  A violation of this subsection shall be grounds for eviction.

(e)  All mobile home lot leases shall contain the following:

* * *

(5)  The requirement of to obtain permission, if any, from the park owner for subletting prior to leasing or selling a mobile home or assigning or subleasing a lease for a mobile home lot to another person.

(6)  The notice required from a mobile home resident leaseholder in order to terminate the lease or occupancy arrangement.

* * *

(f)  A copy of all new lease terms shall be furnished to all mobile home residents leaseholders at least 30 days prior to the effective date of any amendment, addition, or deletion of the existing lease terms.  Upon request, the park owner shall provide to any leaseholder a copy of the current lease for his or her lot.

Sec. 6.  10 V.S.A. § 6237(a), (b), and (d) are amended to read:

(a)  A mobile home resident leaseholder may be evicted only for nonpayment of rent or for a substantial violation of the lease terms of the mobile home park, or if there is a change in use of the park land or parts thereof or a termination of the mobile home park, and only in accordance with the following procedure:

(1)  A resident leaseholder shall not be evicted by force or any other self-help measure.

(2)  Prior to the commencement of any eviction proceeding, the park owner must notify the mobile home resident leaseholder by certified or registered mail, except as provided in subdivision (3) of this subsection;

(A)  of the grounds for an eviction proceeding;

(B)  that an eviction proceeding may be commenced if the mobile home resident leaseholder does not pay the overdue rent within 20 days from the date of the mailing of the notice.

* * *

(5)  A mobile home park owner shall give to each affected leaseholder and to the commissioner of the department of housing and community affairs notice by certified mail at least 18 months prior to any voluntary change in use of all or part of the park land or termination of the mobile home park that would result in the removal of any or all of the mobile home units.  Upon request, the commissioner of housing and community affairs may waive the notice requirement if the change in use is necessary to assure the health, safety or welfare of the park residents.  No eviction proceedings may be commenced during the 18-month notice period, except for nonpayment of rent.

(b)  A mobile home resident leaseholder shall not be evicted when there is proof that the lease terms he is the leaseholder has been accused of violating are not enforced with respect to the other mobile home residents or nonresidents leaseholders or others on the park premises.

* * *

(d)  This section shall apply only to evictions undertaken by the park owner of a mobile home park. Evictions of a mobile home tenant resident by a mobile home owner who is not the park owner of the mobile home park shall be governed by 9 V.S.A. § 4467.

Sec. 7.  10 V.S.A. § 6237a is added to read:

§ 6237a.  MOBILE HOME PARK CLOSURES

(a)  At least 18 months prior to the closure of a mobile home park or any mobile home lot that will result in the eviction of a  resident or a leaseholder or removal of a mobile home, a park owner shall give notice of the closure to each affected resident or leaseholder and to the commissioner by certified mail.  Upon request, the commissioner may waive some or all of the 18-month notice period if the closure is necessary to assure the health, safety, or welfare of park residents.  No evictions may be commenced during the 18‑month closure period except for nonpayment of rent or a substantial violation of the lease terms.

(b)  Prior to issuing a closure notice pursuant to subsection (a) of this section, a park owner shall first notify all mobile home owners of the park owner’s intent to sell in accordance with section 6242 of this title.  However, if the park owner sends a notice of closure to the residents and leaseholders without first providing the mobile home owners with a notice of sale under section 6242, then the park owner must retain ownership of the land for five years after the date the closure notice was provided.  If required, the park owner shall record the notice of the five-year restriction in the land records of the municipality in which the park is located.  The park owner may apply to the commissioner for relief from the notice and holding requirements of this subsection if the commissioner determines that strict compliance is likely to cause undue hardship to the park owner or the leaseholders, or both.  This relief shall not be unreasonably withheld.

(c)  When a park owner gives notice of intent to sell pursuant to section 6242 of this title, any previous notice of closure and any evictions commenced pursuant to the closure notice are void.

(d)  A park owner who gives notice of intent to sell pursuant to section 6242 of this title shall not give notice of closure until after:

(1)  At least 45 days after giving notice of intent to sell.

(2)  If applicable, the commissioner receives notice from the mobile home owners and the park owner that negotiations have ended following the 90‑day negotiation period provided in subdivision 6242(c)(1) of this title.

(e)  A park owner who closes a mobile home park within five years of providing closure notice by selling the land on which the park was located without complying with subsection (b) of this section shall be liable to the state in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater, unless the commissioner has granted relief from strict compliance pursuant to subsection (b) of this section.

(f)  A park owner may bring an action for possession upon the expiration of the 18-month closure notice.  The only defense to an action for possession in the case of a park closure is improper notice.

Sec. 8.  10 V.S.A. § 6238(a) and (b)(4) are amended to read: 

(a)  A prospective resident leaseholder or other person may not be charged an entrance fee for the privilege of leasing or occupying a mobile home lot. A reasonable charge for the fair value of services performed in placing a mobile home on a lot shall not be considered an entrance fee.

(4)  A mobile home park owner who has collected a site improvement fee may not terminate the park or change the use of any site which that has paid the fee without offering to sell the park to the leaseholders mobile home owners in accordance with the provisions of section 6242 of this title.

Sec. 9.  10 V.S.A. § 6239 is amended to read: 

§ 6239.  GOODS AND SERVICES

A mobile home resident leaseholder shall not be restricted in his or her choice of vendors from whom he or she may purchase goods and services. This section shall not be construed to prohibit a mobile home park owner or operator from contracting with any or all mobile home residents leaseholders for the sale, supply or distribution of goods and services, but such contract shall not be required as a condition of entrance to the mobile home park.

Sec. 10.  10 V.S.A. § 6240 is amended to read:

§ 6240.  SALE OF HOMES LOCATED IN PARKS

(a)  Prior to selling a mobile home located in a mobile home park, the mobile home owner shall notify the park owner by certified or registered mail of the name and mailing address of the prospective purchaser.  The seller may be held liable by the purchaser or prospective purchaser for failure to comply with this section.

(b)  A purchaser or prospective purchaser of a mobile home located in a park shall not be refused entrance if except for the inability of the purchaser and his the purchaser’s household to meet the terms of the proposed lease or to qualify under the lease terms a valid admission policy of the park.  Upon approval for entrance into the mobile home park, the purchaser or prospective purchaser shall be offered a written lease pursuant to section 6236 of this title.  If the purchaser or prospective purchaser does not notify the park owner in writing of any objections to the lease terms prior to occupancy of the mobile home park, the purchaser shall be deemed to have accepted the lease, regardless of whether the purchaser signs and returns a copy of the lease to the park owner.  The seller’s failure to provide the notice required in subsection (a) of this section shall not be grounds to deny the purchaser or prospective purchaser’s application.

(c)  A park owner shall not charge or collect any commission on the sale of a mobile home located in a park unless he the park owner contracts to sell the home.

Sec. 11.  10 V.S.A. § 6241(a) and (b) are amended to read:

(a) A park owner may enter a mobile home lot in the park with the tenant's resident’s consent, which shall not be unreasonably withheld.

(b) A park owner may also enter a mobile home lot in the park between the hours of 7:00 a.m. and 7:00 p.m. on no less than 12 hours' notice for any of the following purposes:

* * *

(4)  To exhibit show the lot to prospective or actual purchasers, mortgagees, tenants residents, workers or contractors.

Sec. 12.  10 V.S.A. § 6242 is amended to read:

§ 6242.  LEASEHOLDER'S MOBILE HOME OWNERS’ RIGHT TO

       NOTIFICATION PRIOR TO PARK SALE

(a)  A mobile home park owner shall give to each leaseholder mobile home owner and to the commissioner of the department of housing and community affairs notice by certified mail of his or her intention to sell the mobile home park. For the purpose of this section, a leaseholder is the holder of a lease for a lot or a leasehold on which a mobile home owned by the leaseholder is sited. Nothing herein shall be construed to restrict the price at which the park owner offers the park for sale.  The notice shall state all the following:

(1)  that That the park owner intends to sell the park;.

(2)  the The price, terms and conditions under which the park owner offers the park for sale;.

(3)  a A list of the affected leaseholders mobile home owners and the number of leaseholds held by each;.

(4)  the The status of compliance with applicable statutes, regulations and permits, to the park owner's best knowledge, and the reasons for any noncompliance; and.

(5)  that That for 45 days following the notice the mobile home park owner shall not make a final unconditional acceptance of an offer to purchase the park and that if within the 45 days the park owner receives notice pursuant to subsection (c) of this section that a majority of the leaseholders mobile home owners intend to consider purchase of the park, the park owner shall not make a final unconditional acceptance of an offer to purchase the park for an additional 90 days, starting from the 46th day following notice, except one from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(b)  The leaseholders mobile home owners shall have 45 days following notice under subsection (a) of this section in which to determine whether they intend to consider purchase of the park through a group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners. A majority of the leaseholders mobile home owners shall be determined by one vote per leasehold and no leaseholder mobile home owner shall have more than three votes or 30 percent of the aggregate park vote, whichever is less.  During this 45-day period, the park owner shall not accept a final unconditional offer to purchase the park. A park owner shall not restrict representatives of the department from access to the park residents.

(c)  If the park owner receives no notice from the leaseholders mobile home owners during the 45-day period or if the leaseholders mobile home owners notify the park owner that they do not intend to consider purchase of the park, the park owner has no further restrictions regarding sale of the park pursuant to this section.  If during the 45-day period, the park owner receives notice in writing that a majority of the leaseholders mobile home owners intend to consider purchase of the park then the park owner shall do all the following:

(1)  shall not Not accept a final unconditional offer to purchase from a party other than leaseholders for 90 days following the 45-day period, a total of 135 days following the notice from the leaseholders;.

(2)  shall negotiate Negotiate in good faith with the group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners concerning purchase of the park;.

(3)  shall consider Consider any offer to purchase from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(d)  A park owner who sells a mobile home park without complying with this section shall be liable to the residents mobile home owners in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater. A sale, an offer to sell, or an attempt to sell a mobile home park without complying with this section shall also be subject to the remedies of section 6205 of this title, including actual and punitive damages.

(e)  The provisions of this section do not apply when the sale, transfer or conveyance of the mobile home park is any one or more of the following:

(1)  through Through a foreclosure sale;.

(2)  to To a member of the park owner's family or to a trust for the sole benefit of members of the park owner's family;

(3)  among Among the partners who own the mobile home park;.

(4)  incidental Incidental to financing the park;.

(5)  between Between joint tenants or tenants in common;.

(6)  pursuant Pursuant to eminent domain.

(7)  Pursuant to a municipal tax sale.

(f)  No additional notice pursuant to subsection (a) of this section shall be required if the sale is in compliance with either of the following:

(1)  The mobile home park owner completes a sale of the park within one year from the expiration of the 45-day period following the date of the notice and the sale price is either of the following:

(A)  No less than the price for which the park was offered for sale pursuant to subsection (a) of this section.

(B)  Substantially higher than the final written offer from a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners.

(2)  The park owner has entered into a binding purchase and sale agreement with a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners with a closing date later than one year from the date of the notice.

(g)  A majority of the leaseholders group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners shall negotiate in good faith with the park owner for purchase of the park.

Sec. 13.  10 V.S.A. § 6244 is amended to read:

§ 6244.  SECURITY DEPOSITS

(a)  A security deposit is any advance, deposit or prepaid rent which is refundable to a mobile home resident leaseholder at the termination or expiration of the occupancy. A security deposit is to secure the resident's leaseholder’s obligation to pay rent and to maintain a rented mobile home or mobile home lot.

(b)  The mobile home park owner may retain all or a portion of the security deposit for any of the following reasons:

(1)  Nonpayment of rent.

(2)  Damage to property of the park owner, unless the damage is the result of normal wear and tear or the result of actions or events beyond the control of the resident leaseholder.

(3)  Nonpayment of utility or other charges which the resident leaseholder was required to pay directly to the park owner or to a utility.

(4)  Expenses for removal of articles abandoned by the resident leaseholder, including personal property, the mobile home, rubbish and motor vehicles from the mobile home lot.

(c)  A park owner shall return to the resident leaseholder the security deposit with a written statement itemizing any deductions within 14 days from the date on which the resident leaseholder:

* * *

(3)  has been removed from the park, together with the resident’s mobile home pursuant to a writ of possession.

(d)  The park owner shall comply with this section by hand-delivering or mailing the statement and any payment required to the last known address of the resident leaseholder.

* * *

(f)  Upon termination of the park owner's interest in the park, the security deposit shall be transferred to the new park owner.  The new park owner shall give the resident leaseholder actual notice of the new park owner's name and address with a statement that the security deposit has been transferred to the new park owner.

(g)  A town or municipality may adopt an ordinance governing security deposits on mobile homes or mobile home lots.  The ordinance shall be supplemental to and not inconsistent with the minimum protections of the provisions of this section.  The ordinance may not limit how a security deposit is held.  The ordinance may authorize the payment of interest on a security deposit.  The ordinance may provide that a housing board of review constituted pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security deposits upon request for a hearing by a park owner or resident leaseholder. The board's actions shall be reviewable under 24 V.S.A. § 5006.

Sec. 14.  10 V.S.A. § 6245(a), (b),and (c) are amended to read:

(a)  No park owner may wilfuly cause, directly or indirectly, the interruption or termination of any utility service to a resident mobile home except for temporary interruptions for necessary repairs.

(b)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's rented or leased premises a mobile home, except through proper judicial process.

(c)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's leaseholder’s rented or leased property, except through proper judicial process.

Sec. 15.  10 V.S.A. § 6246(a) is amended to read:

(a)  Any resident leaseholder who sustains damage or injury as a result of an illegal eviction, as defined in section 6245 of this title, may bring an action for injunctive relief, damages, costs, and reasonable attorney fees.

Sec. 16.  10 V.S.A. § 6247(a) is amended to read:

(a)  A park owner may not retaliate by establishing any of the following:

(1)  Establishing or changing terms of a rental agreement or by bringing.

(2)  Bringing or threatening to bring an action against a resident who has done any of the following:

(1)  has complained (A)  Complained in writing to a governmental agency charged with responsibility for enforcement of a building, housing or health regulation of a violation applicable to the premises materially affecting health and safety;.

(2)  has complained (B)  Complained in writing to the park owner of a violation of this chapter; or.

(3)  has organized (C)  Organized or become a member of a resident’s association or similar organization.

Sec. 17.  10 V.S.A. § 6252(a) is amended to read:

(a)  If the percentage of a proposed lot rent increase is more than one percentage point above the U.S. Consumer Price Index for all Urban Consumers, Housing Component, published by the U.S. Bureau of Labor Statistics in the periodical "Monthly Labor Review and Handbook of Labor Statistics" as established annually by the department, and if, within 15 business days after receipt by the commissioner of the notice required pursuant to subsection 6251(a) of this title, a majority of the affected leaseholders of the occupied leased lots files with the commissioner and the park owner a written petition that includes the name of the person who will act as the representative of the leaseholders and a statement that they dispute the proposed lot rent increase, the commissioner shall send a list of qualified professional mediators compiled by the department in cooperation with park owners and leaseholders to the park owner and to the leaseholders' representative. Within five business days of receipt of the list, the park owner and the leaseholders' representative shall agree on a mediator from the list provided by the commissioner and notify the commissioner of the name, address and telephone number of the mediator selected, accompanied by the mediator's agreement to conduct the mediation.  If the commissioner has not been notified of a mediator as required by this subsection, the commissioner shall appoint a mediator from the department's list.  The mediator may not have any interest, direct or indirect, in the mobile home park at issue and shall disclose to the park owner, the leaseholders and the commissioner, any experience as a mobile home park owner, resident or leaseholder, or any other circumstance that may create a real or perceived conflict of interest.  The department shall pay the reasonable fees for professional mediation services based on a schedule established by rule of the department.

Sec. 18.  10 V.S.A. § 6253(a) is amended to read:

(a)  If the parties are unable to resolve the disputed proposed lot rent increase pursuant to the process provided in section 6252 of this title, an action for abatement of some or all of the proposed lot rent increase based on a claim that the increase is clearly excessive may be initiated by the number a majority of the affected mobile home park leaseholders that corresponds to a majority of the occupied leased lots by filing a complaint in the superior court in the county in which the mobile home park is located within 30 days after the effective date of the proposed lot rent increase.

Sec. 19.  10 V.S.A. § 6254 is amended to read:

§ 6254.  REGISTRATION OF MOBILE HOME PARKS; REPORT

(a)  No later than September 1, 1995, and every three years thereafter on September 1, each year, each mobile home park owner shall register with the department on a form provided by the department.  The form shall include the following information:

* * *

(9)  The services provided to the mobile home park residents leaseholders for payment of lot rent.

(10)  Additional charges for services paid by residents leaseholders in addition to lot rent.

* * *

(c)  The department may charge a mobile home park owner an annual fee of no more than $9.00 for each occupied leased lot in the park on September 1 of each year.  The mobile home park owner may charge this fee to the affected mobile home park residents leaseholders.  The fee shall be submitted to the department with the registration form required in subsection (a) of this section. If a mobile home park owner charges the fee under this subsection to the mobile home park residents, the fee shall not be deemed to be a lot rent increase and shall not be included in any calculation of a lot rent increase pursuant to section 6251 of this title. A mobile home park owner shall not be charged the fee under this subsection for any mobile home park in which all the mobile homes are owned by the mobile home park owner.  The commissioner may enforce filing of the registration form and payment of the fee under subsection 6205(a) of this title.  A special fund shall be created for these fees, to be used by the department of housing and community affairs for its expenses in administering the laws regarding mobile home parks, and to pay any fees required in the mediation process pursuant to section 6252 of this title and for legal representation for leaseholders pursuant to section 6253 of this title.  This special fund shall be managed in accordance with subchapter 5 of chapter 7 of Title 32.

Sec. 20.  10 V.S.A. § 6262(c) is amended to read:

(c)  No rental agreement shall contain any provision by which the resident leaseholder waives the protections of the implied warranty of habitability. Any such waiver shall be deemed contrary to public policy and shall be unenforceable and void.

Sec. 21.  10 V.S.A. § 6263 is amended to read:

§ 6263.  HABITABILITY; TENANT LEASEHOLDER REMEDIES

(a)  If the mobile home park owner fails to comply with the obligation of habitability, the park owner shall be deemed to have notice of the noncompliance if the park owner receives actual notice of the noncompliance from the resident leaseholder, a governmental entity, or a qualified independent inspector.  If the park owner has received notice from any of those sources and fails to make repairs within a reasonable time and the noncompliance materially affects health and safety, the resident leaseholder may pursue any of the following remedies:

* * *

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or of a person on the premises with the resident's leaseholder’s consent.

Sec. 22.  10 V.S.A. § 6264 is amended to read:

§ 6264.  MINOR DEFECTS; REPAIR AND DEDUCT

(a)  If the park owner fails to repair a minor defect or noncompliance with this chapter or noncompliance with a material provision of the rental agreement within 30 days of receipt of written notice, the resident leaseholder may repair the defect or noncompliance and deduct from the rent the actual and reasonable cost, not to exceed one-half of one month's lot rent.  No major work on water, sewer, or electrical systems may be performed under this section. The resident leaseholder shall provide the owner with written notice of the cost of the repair or service when the cost is deducted from the rent.  The resident leaseholder shall be responsible for any damage caused by the repair or attempts to repair.

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or a person on the premises with the resident's  leaseholder’s consent.

Sec. 23.  10 V.S.A. § 6265 is amended to read:

§ 6265.  CONDEMNATION AND RELOCATION OF RESIDENTS

(a)  The owner of a lot or rented mobile home which that is condemned by a governmental agency due to the wilful failure or refusal of the owner to comply with any obligations imposed by law shall provide for reasonable relocation costs of affected leaseholders and residents, except when the owner can demonstrate that he or she has no financial capacity to comply.  The affected leaseholders and residents shall have the right to recover the reasonable costs of relocation, including court costs and reasonable attorney fees.  The agency of natural resources shall grant to the owner in a timely fashion all permits necessary to correct violations under this subchapter.

(b)  The commissioner may require a park owner who commences a closure of a mobile home park pursuant to section 6237a of this title within one year of receiving from a state or municipal enforcement official a notice of a violation of health, safety, or environmental laws or of section 6262 of this title to pay reasonable relocation costs not to exceed $3,500.00 to each affected leaseholder, except when the park owner can demonstrate that he or she has no financial capacity to comply.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 19, 2008, page 635.)

H. 615

An act relating to juvenile judicial proceedings.

Reported favorably with recommendation of proposal of amendment by Senator Nitka for the Committee on Judiciary.

The Committee recommends that the Senate propose 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.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 21, 2008, page 683.)

H. 700

An act relating to sale of bottles of wine at festivals.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

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

Sec. 1.  7 V.S.A. § 2(27) is amended to read:

(27)  “Special events permit”:  a permit granted by the liquor control board permitting a person holding a manufacturer’s or rectifier’s license to attend an event open to the public, which has been approved by the local licensing authority, to sell by the glass or by unopened bottle the malt or vinous beverage manufactured or rectified by the license holder.  No more than 12 special events’ permits shall be issued to a holder of a manufacturer’s or rectifier’s license during a year.  The fee for the permit is as required by subdivision 231(13) of this title, and shall be paid to the department of liquor control.  Requests for a special events’ permit shall be submitted to the department of liquor control and received by the department at least 15 days prior to the date of the event.  Each manufacturer or rectifier planning to attend a single special event under this permit may be listed on a single permit. However each attendance at a special event shall count toward the manufacturer’s or rectifier’s 12 special event permit limitation.

(Committee Vote: 5-0-0)

(No House amendments.)

PROPOSAL OF AMENDMENT TO H. 700 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves that the Senate propose to the House to amend the bill by adding two new sections to be numbered Secs. 2 and 3 to read as follows:

Sec. 2.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means:

     (A)  a licensed plumber, electrician, or HVAC contractor;

     (B)  An established and known building or construction contractor, demolition contractor, construction and demolition debris contractor;

     (C)  a public utility, transportation company, licensed peddler or broker;

     (D)  an established and known industrial or manufacturing company; marine, automobile, or aircraft salvage and wrecking company; or

     (E)  a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

(F)  Catalytic converters.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 3.  4 V.S.A. § 1102(b) is amended to read:

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

H. 748

An act relating to permitting students to possess and self-administer emergency medication.

Reported favorably with recommendation of proposal of amendment by Senator Nitka for the Committee on Education.

The Committee recommends that the Senate propose 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.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 20, 2008, page 649.)

House Proposal of Amendment

S. 146

An act relating to advertising and producing musical performances.

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

In Sec. 1. 9 V.S.A. § 2479a(b)(3) between the words “is” and “identified” by adding the word “conspicuously

Proposed Amendment To The Constitution

PROPOSAL 1

(Fourth day on Notice Calendar pursuant to Rule 77)

Reported favorably with recommendation of amendment by Senator White for the Committee on Government Operations.

Subject:  General assembly; organizational session.

The Committee recommends that the proposal be amended by striking out the proposal in its entirety and inserting in lieu thereof the following:

PROPOSAL 1

Sec. 1.  PURPOSE

This proposal would amend the Constitution of the State of Vermont to provide for an organizational session of the Vermont General Assembly on the first Wednesday in December following each general election for the exclusive purposes of organization, swearing in of members, and selection of officers.

Sec. 2.  Section 7 of Chapter II of the Vermont Constitution is amended to read:

§ 7.  [ORGANIZATIONAL AND BIENNIAL SESSIONS]

On the first Wednesday in December following each general election, the General Assembly shall meet for one day for an organizational session for the exclusive purposes of organizing, swearing in members, and selecting officers.

The General Assembly shall meet biennially, for the commencement of a biennial session, on the first Wednesday next after the first Monday of January, beginning in A.D. 1915.

Sec. 3.  Section 17 of Chapter II of the Vermont Constitution is amended to read:

§ 17.  [OATH OF SENATORS AND REPRESENTATIVES]

The Representatives having met on the day appointed by law for the commencement of a biennial session of the General Assembly, and chosen their Speaker, and the Senators having met, shall, before they proceed to business, take and subscribe the following oath, in addition to the oath prescribed in the foregoing section oaths:

You do solemnly swear (or affirm) that you did not at the time of your election to this body, and that you do not now, hold any office of profit or trust under the authority of Congress. So help you God.  (Or in case of an affirmation) Under the pains and penalties of perjury.  The words “office of profit or trust under the authority of Congress” shall be construed to mean any office created directly or indirectly by Congress, and for which emolument is provided from the Treasury of the United States, other than that of a member of the commissioned or enlisted personnel in the reserve components of the armed forces of the United States while not on extended active duty.

You do solemnly swear (or affirm) that as a member of this Assembly, you will not propose, or assent to, any bill, vote, or resolution, which shall appear to you injurious to the people, nor do or consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State; but will, in all things, conduct yourself as a faithful, honest Representative and guardian of the people, according to the best of your judgment and ability.  So help you God. (Or in the case of an affirmation) Under the pains and penalties of perjury.

You do solemnly swear (or affirm) that you will be true and faithful to the State of Vermont, and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof.  So help you God. (Or in case of an affirmation) Under the pains and penalties of perjury.

Sec. 4.  Section 46 of Chapter II of the Vermont Constitution is amended to read:

§ 46.  [TERMS OF SENATORS AND REPRESENTATIVES]

The term of office of Senators and Representatives shall be two years, commencing on the first Wednesday next after the first Monday of January in December following their election.

Sec. 5.  REPEAL

Chapter II § 16 of the Vermont Constitution (oath for members of the House of Representatives) is repealed.

Sec. 6.  EFFECTIVE DATE; TRANSITION

This proposal of amendment shall take effect from the date of its approval by a majority vote of the voters of the state.  The term of office of senators and representatives elected in the general election in November 2010 shall terminate on the first Tuesday of December 2012, and the term of office of senators and representatives elected in the general election in November 2012 shall convene on the first Wednesday in December 2012.

(Committee vote:  5-0-0)

Proposed Amendment to the Constitution

PROPOSAL 5

(Third day on Notice Calendar pursuant to Rule 77)

Reported favorably with recommendation of amendment by Senator White for the Committee on Government Operations.

Subject:  Elections; Voter’s oath; self-administration.

The Committee recommends that the proposal be amended by striking out the proposal in its entirety and inserting in lieu thereof the following:

PROPOSAL 5

Sec. 1.  PURPOSE

This proposal would amend the Constitution of the State of Vermont to provide that a person who will attain the age of 18 by the date of the general election shall have the right to vote in the primary election.

Sec. 2.  Section 42 of Chapter II of the Vermont Constitution is amended to read:

§ 42.  [Voter’s qualifications and oath]

Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.

Every person who will attain the full age of eighteen years by the date of the general election who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the oath or affirmation set forth in this section, shall be entitled to vote in the primary election.

Sec. 3.  EFFECTIVE DATE

This proposal of amendment shall take effect from the date of its approval by a majority vote of the voters of the state.

(Committee vote: 5-0-0)

ORDERED TO LIE

S. 70

An act relating to empowering municipalities to regulate the application of pesticides within their borders.

PENDING ACTION:  Second reading of the bill.

S. 102

An act relating to decreasing the percentage to determine a school district’s excess spending.

PENDING QUESTION:  Second reading of the bill.

S. 108

An act relating to the election of U.S. Representative and U.S. Senator by the instant runoff voting method.

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

S. 118

An act relating to fiscal review of high spending districts and special education.

PENDING ACTION:  Second reading of the bill.

S. 211

An act relating to soliciting or architect proposals by a school district.

PENDING ACTION:  Second reading of the bill.

S. 348

An act relating to education or workforce training for children between the ages of 16 and 18 years of age.

PENDING QUESTION:  Shall the recommendation of amendment of the Committee on Education be amended as recommended by the Committee on Appropriations?

J.R.S. 24

Joint resolution relating to the federal “fast track” process for congressional review of international trade agreements.

PENDING ACTION:  Second reading of the resolution.

CONFIRMATIONS

The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Richard G. Grassi of White River Junction - Member of the Parole Board - By Sen. Campbell for the Committee on Institutions.  (4/4)

Heather Shouldice of East Calais - Member of the Capitol Complex Commission - By Sen. Coppenrath for the Committee on Institutions.  (4/4)

Susan Hayward of Middlesex - Member of the Capitol Complex Commission - By Sen. Scott for the Committee on Institutions.  (4/4)

Dean George of Middlebury - Member of the Parole Board - By Sen. Mazza for the Committee on Institutions.  (4/4)

INFORMATION NOTICE

The following item was recently received by the Joint Fiscal Committee:

JFO #2324 –– $14,500 grant from the Northeast Center for Agricultural Health to the Agency of Agriculture, Food & Markets.  These grant funds will be used to produce bilingual training materials for skid loader safety for dairy producers in Franklin and Addison counties.  [JFO received 04/14/08]



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The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us