Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 - Page 45

by Kerry A. McDonald-Cady THE CHILDREN’S CORNER An Overview of The Enhanced Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases On September 16, 2016, in a large con- ference room in Waterbury, flooded with light from a beautiful, crisp autumn day, members of the juvenile law communi- ty throughout the state, including judges, attorneys, court clerks and social work- ers, gathered together for the day to talk about best practices for cases involving child abuse and neglect. Specifically, the discussion centered around improving Ver- mont’s juvenile CHINS (children in need of care or supervision) docket by embrac- ing and putting to practice the National Council of Juvenile and Family Court Judg- es’ “Enhanced Resource Guidelines.” Our guest speaker and presenter was retired Family Court Judge the Honorable Ste- phen M. Rubin, the Chair of the “Enhanced Resource Guidelines Steering Committee” and contributing author of the two-inch thick “Enhanced Resource Guidelines.” In 1995, the National Council of Juvenile and Family Court Judges developed the original Resource Guidelines in an effort to set forth best practices to be implemented in all state family court dependency hear- ings, which would then lead to improve- ments in child neglect and abuse cases and better outcomes for children and their fam- ilies. The need to look closer at the court system entrusted with the safety and future of abused and neglected children was first identified by the passage of the Adoption Assistance and Child Welfare Act of 1980. 1 This law required family courts to evaluate the “reasonable efforts” being made b y social workers to provide families with ser- vices to allow them to achieve reunifica- tion with their children. 2 In addition, the law imposed the requirement that family courts hold regular review hearings to care- fully look at permanency goals for children and reasonable timeframes to minimize the time children remain in temporary place- ments. If the determination of “reasonable efforts” is not made within federally-speci- fied timeframes, the child is not eligible un- der Title IV-E foster care maintenance pay- ments during the duration of his or her stay in foster care. 3 In 1997, Congress passed the Adoption and Safe Families Act (ASFA) which highlighted several areas of contin- ued concern in child neglect and abuse proceedings, leading to strict time limits for permanency and termination of paren- tal rights hearings, including the reiteration that the child’s health and welfare were the primary concerns in child abuse and ne- glect cases. 4 The first and most critical stage of a de- pendency hearing is the preliminary pro- tective hearing, referred to in Vermont as a Temporary Care Hearing. In Vermont, if the Court finds that the child’s continued residence in the home is contrary to the child’s welfare after reviewing an affidavit prepared by a law enforcement officer or a social worker, or both, the Court may issue an emergency care order temporarily trans- ferring legal custody of a child from a par- ent, custodian or guardian to the Depart- ment of Children & Families (DCF). 5 Alter- natively, if the Court finds that a child may remain in his or her home safely but with certain conditions present, the Court may issue an emergency conditional custody or- der temporarily “conditioning” the child’s custody to his or her parent, custodian or guardian upon the adherence to or prohibi- tion of certain conditions set by the Court. 6 In Vermont,”a temporary care hearing shall be held within 72 hours of the issu- ance of an emergency care order or con- ditional custody order.” 7 The purpose of the temporary care hearing is to determine whether a child can be returned to his or her home. Historically, by statute, if the Court finds by a preponderance of the evidence that a “return home would be contrary to the child’s welfare as it could result in a sub- stantial danger to the physical health, men- tal health, welfare or safety of the child” or if the child or another child within the same home was physically or sexually abused or is at substantial risk of physical or sexual abuse by the parent, custodian, guardian or occupant, or that the child was abandoned or neglected, the Court may issue a tempo- rary care order continuing the child in DCF custody, pending a finding by the Court that the child was, in fact, a child in need of care or supervision. 8 The Court may also is- sue a temporary care order transferring le- gal custody of the child to a non-custodial parent, another relative or a person with a significant relationship to the child, as well as ultimately returning the child to the par- ent, being subject to conditions of a condi- tional custody order. 9 A recent change to Vermont law eliminated the order of pref- erence for these legal options set forth in THE VERMONT BAR JOURNAL • SPRING 2017 Chapter 53 of Title 33 dealing with CHINS cases, thereby allowing the Court to use its discretion in applying the legal standard of “what is necessary and sufficient to protect the welfare and safety of the child” when determining what type of temporary order to issue. 10 Despite the fact that Vermont juvenile CHINS cases are confidential with only the parents and child and their separate court- appointed attorneys present, along with DCF, the State’s Attorney and a Guardian Ad Litem (GAL), the “Enhanced Resource Guidelines” stresses the importance of having all possible placements for the child considered at the preliminary protective hearing and that more people present may be better. In particular, Judge Rubin re- ferred to the Fostering Connections Act, a federal law that requires due diligence by social services to identify all adult relatives and by the court to provide notice to those relatives within 30 days of the child’s remov- al from his or her home. 11 Additionally, the Preventing Sex Trafficking and Strengthen- ing Families Act of 2014 requires that adult relatives of any siblings of the child, such as the mother of a step-brother or sister, must be provided notice of the dependen- cy hearing. 12 A change in 2015 to Vermont’s Juvenile Proceedings Act now allows for “an indi- vidual without party status seeking inclu- sion in the hearing’ to file a written petition with the Court requesting admittance. 13 Although this new provision does not set forth the statutory criteria upon which to grant the petition, some guidance may be taken from the earlier subsection allowing for a person “with a proper interest in the case or in the work of the Court” to be al- lowed to attend juvenile court hearings. 14 If more adult relatives and/or friends were identified by parents and approved by DCF as appropriate placements earlier on in the CHINS proceedings, specifically be- fore the Temporary Care Hearing, perhaps it would allow more children to be moved to healthy kinship placements, thereby re- ducing contested temporary care hearings and alleviating the never-ending demand for foster homes. The next stage of dependency hearings is the adjudication hearing referred to in Vermont as a merits hearing. Similar to the criminal division, the State has the burden 45