Children ’ s Corner |
to define unfit as “ abandoned or abused ,” “ without proper parental care ,” or “ beyond the parents ’ control .” Conspicuously absent is any mention of the best interests of the child . Some would necessarily argue that the enhanced legal position of the biological parent comes at a cost , namely a heightened risk of additional harm befalling children .
What to Make of It ?
It is , unfortunately , undeniable that opiate addicted parents often are not available or capable of parenting their children for a period of time . In Probate Court , a concerned person connected to the child ( usually a relative ), who recognizes this can step in to initiate the action . However , in Juvenile Court , the State must file the initial petition . And the proceedings could not be more dissimilar . It seems clear that the changes made to the minor guardianship statute in 2014 substantially tip the balance in favor of the rights of biological parents . The changes made to the juvenile statute in 2015 lean in precisely the opposite direction . Ironically , while played out in different Courts , it is precisely the same population that finds itself in Probate Court and Juvenile Court : namely families where by definition the parents cannot care for their children for at least a period of time .
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In the juvenile docket , each parent and the child / children are statutorily guaranteed representation . DCF is a party . The State ’ s Attorney plays a central role . A GAL is appointed to determine the best interests of the child ( ren ). A disposition plan and case plan are developed . The State has substantial resources to insist that if a child is to return home , parents must enter appropriate substance abuse programs specifically designed to treat opiate addiction . In addition , there are mechanisms in place to monitor a parent ’ s progress . The State can recommend or insist on home studies ; unannounced home visits ; random urine testing ; a parent securing employment and housing . Visits can also be supervised by DCF or ordered at a visitation center . While a day does not go by that addicts in these situations do not lament the lack of available resources , there exists a plethora of protective tools available to DCF and to Juvenile Court to help assure that a parent ’ s home is safe before a child is returned .
Just down the road , or in some cases down the stairs , the Probate Court has virtually none of those resources available . GAL ( s ) are scarce , if available at all . Few litigants can afford attorneys , and they have no statutory right to counsel . While the Probate Court can insist on any number of things ( substance abuse evaluations , etc .), monitoring a parent ’ s compliance is essentially left to the grit and ingenuity of the Probate Court Judge .
The hard part of this picture is that the Probate Court and , to some extent , the parties in a probate proceeding are charged with making exactly the same decision that has to be made in Juvenile Court : Is it safe to send a child / children back home to their biological parents who have a history of opiate use ? If not , when will it be safe ?
This is not to criticize one court or one legislative mandate over another . Again , the intent is only to foster discussion . In that vein , one final thought comes to mind . Having spent a tremendous amount of time in both of these settings , Probate Court does have one tangible and important advantage in making these decisions and that is the real time of a judge . For a variety of reasons that Juvenile Court practitioners know all too well , the pressure is always upon the parties and their attorneys to arrive at some sort of agreement . Due to time constraints and the sheer volume of cases , it is difficult for judges to make substantive decisions on the merits . In the early stages of a CHINS proceeding , there is almost always a crisis .
If your client was found passed out at the wheel of a car on the railroad tracks at two in the morning with a three year-old in the back seat , do you really want to do a contested Temporary Care Hearing ? The answer is : Of course not . One feels compelled
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to compromise , argue for a CCO ( Conditional Custody Order ) and convince your client to find the help he so desperately needs - and fast . The same temptation often arises in a merits hearing . If DCF and the State have a pile of evidence proving a parent ’ s substance abuse problem , the pressure is the same : to arrive at an outcome which secures the help your client needs , as well as a commitment from DCF to work toward reunification . It is not uncommon in a CHINS proceeding to go from beginning to end without a single substantive hearing before a judge . Of course , good lawyers still try the cases they can ( as they should ). But litigants can often feel they were never truly heard by the decision-maker .
For better or worse , probate proceedings paint a contrasting picture . As raw as some of the hearings often are , litigants see the decision-maker in their case right away . Some may think that factor is overrated but for those who spend a substantial amount of time in Probate Court , it is difficult to overlook its importance .
Conclusion
There are really no conclusions to be drawn here , only questions to be asked . The increase in opiate addiction in this state , as elsewhere , is going to continue to stretch our judicial system in places we once thought entirely unlikely . But if there is a bright side , it is that this crisis will surely act as a magnifying glass . It will continue to force us to ask hard questions about how our judicial system is addressing the problems . Are we striking the right balance ? Are we protecting our children and our community ? Are we making the safest and wisest decisions we can ? The future of our children , and our society , depends on a considerate and deep reflection of the answers to these crucial inquiries .
Note : The author would like to thank Kerrie Johnson , VLS ‘ 16 , for her wonderful summation of S . 9 that she authored while working as a clinician at the South Royalton Legal Clinic . He also wants to thank Brittany LaBerge , VLS ‘ 17 , for her paper on this topic , as yet unpublished . ____________________
1
15 VSA § 1101 et seq .
2
15 VSA § 665 .
3
15 VSA $ 751 .
4
See generally , K . Piper , “ The Practical Implications of the New Enacted Juvenile Judicial Proceedings Act ., Vermont Bar Journal , Spring 2009 , p . 1-6
5
Id .
6
Paris Archen , “ Vermont House Passes Child Protection Bill ,” Burlington Free Press , April 30 , 2015 .
7
14 VSA § 2632 ( b )( 2 )
8
14 VSA 2622 ( 2 ).
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