by Alexander W . Banks , Esq . and Sharon A . Mee South Royalton Legal Clinic
THE CHILDREN ’ S CORNER
If Your Parent is an Opiate Addict , Will You Go Home ? The Answer is : It Depends .
An opiate addicted parent fighting to regain custody of her child must find the legal system quite mystifying . She can have drug-related criminal charges pending while , at the same time , be involved in a parentage or divorce proceeding . She may be the plaintiff or defendant in a relief from abuse order . She may have placed her child with a relative and is now , with your help , trying to convince a Probate Court judge she ’ s clean and sober . Or your client may have had the Department of Children and Families ( DCF ) file a CHINS petition against her for alleged child abuse or endangerment .
Understandably , any mother or father would find all of this terribly daunting as each of these proceedings follows a different path . They are played out in different courts ; the rules aren ’ t the same ; the scenes take place before various judges , and the potential consequences can vary widely . In some courts dealing with the welfare of children , there is a right for a parent to be represented ; in others there is no such right . The State may or may not be involved . A Guardian ad Litem ( GAL ) is appointed automatically in certain types of matters . Yet a parent may have to request a GAL in some instances , and even then their request may not be granted .
There is also an endless array of family members who can become intrinsically involved in a battle for the same children . The dissension may be between ex-partners , parents , grandparents , or even an expartner ’ s parent or relative . There is often no clear path toward a resolution of this myriad of conflict . Yet what is always at stake is a parent ’ s meaningful relationship with his child ( ren ). Emotions run high and burn hot in a fight for one ’ s offspring in a court of law , and it can be truly overwhelming . And with opiate addicts , there is also a fight burning within , even if they are drugfree at the time .
When we raise the topic of the Judiciary ’ s response to the opiate epidemic , most thoughts turn naturally to the criminal justice system . We ask such questions as : How can we enforce anti-drug laws without creating a sub-class of addicted criminals ? How can we use the system to help addicts save themselves from their disease while protecting others ? The reality is that the opiate epidemic is a scourge on families and our communities almost across the board . Opiate addiction rears its head in Abuse Prevention Proceedings 1 . It arises in divorce and parentage proceedings , which require judges to make determinations about the best interests of a child . 2 With far lesser frequency , it can play a role in property distribution . 3
The reality of opiate addiction arises in truly alarming proportions in two other settings : in juvenile proceedings , pursuant to the Juvenile Judicial Proceedings Act , 33 VSA § 5101 et . seq . and in minor guardianship proceedings , 14 VSA § 2621 et . seq . In each of these courts , the legislature has recently acted to substantially impact the rights of parents and , by implication , their children . The enactments appear , at least on the surface , to be moving in divergent , if not diametrically opposed directions . The purpose of this piece is not to question the wisdom of one enactment over another , but merely to raise the contrast between the two for thought and discussion .
The Juvenile Judicial Proceedings Act
To discuss the recent changes in the Juvenile Judicial Proceedings Act ( hereinafter the Juvenile Act ), it is necessary to take one step backward . After extensive study and work , the Juvenile Act was substantially amended in 2009 . The thinking behind the 2009 amendments was to make juvenile proceedings less contentious and to foster collaboration between families and DCF . 4 In addition , these changes were designed to not only encourage some sort of reunification with the birth family but to give that goal a higher priority . 5 Thus , to a substantial degree , the position of parents was enhanced . While there were certainly other driving factors , the above are the most cogent for purposes of this discussion .
On June 15 , 2015 , Act 60 , formerly S . 9 was signed in to law . While it may be intellectually dubious to take short cuts through history , it is widely recognized that S . 9 was driven in large part by the high profile deaths of two children who died in their parents ’ care after being returned to their custody by DCF and the Juvenile Court ( s ). 6 A fair summation of the intent behind S . 9 was to strengthen protections for children in the juvenile system . They are as follows :
• Birth parents are afforded less priority in placement decisions ;
• Other parties are potentially afforded party status ;
• The definition of child abuse and neglect is expanded ; and
• Birth parents are encouraged to voluntarily terminate their parental rights in exchange for continued contact post adoption . ( This same subject was , in fact , treated by Attorneys Sweeney and Louttit in The Children ’ s Corner previously , in an article entitled , “ The New “ Enforceable ” Post-Adoption Contact Agreement : Just Another Name for the Same Old Letter of Intent ?”, Vermont Bar Journal , Fall 2015 , Vol . 41 , No . 3 , Pgs . 28-29 .
Some might argue the foregoing changes came at the cost of weakening the rights afforded to birth parents .
The Minor Guardianship Statute
Effective September 1 , 2014 , the Minor Guardianship Statute was amended . In sum , the position of the biological parents in minor guardianship proceedings was substantially strengthened . Perhaps the most significant change affected the applicable criteria for terminating a minor guardianship . There are different standards applied when the original guardianship is entered involuntarily ( 14 VSA § 2627 ) versus an initial guardianship that is voluntary ( 14 VSA § 2626 ). Prior to 2014 , if a biological parent requested termination of a voluntary minor guardianship , the standards were set forth in Boisvert v . Harrington , 173 VT 285 ( 2002 ) and , to a lesser extent , In Re : KMM 211 VT 30 ( 2011 ). While each of those cases held that the burden lay with the guardian to demonstrate to the Court why the guardianship should remain in place , there was no requirement to prove the biological parent as unfit .
The new statute governing the termination of a voluntary guardianship by a biological parent holds guardians to precisely that standard : To prove by clear and convincing evidence that the child is in need of a guardianship 7 because the parents of that child are , in fact , unfit . 8 The statute borrows language directly from the juvenile statute
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