The Children's Corner, 17 VTBARJ, Winter 2017-#43

Author:Alexander W. Banks, Esq. and Sharon A. Mee South Royalton Legal Clinic


Vol. 42 No. 4 Pg. 43

Vermont Bar Journal

Winter, 2017

If Your Parent is an Opiate Addict, Will You Go Home? The Answer is: It Depends.

Alexander W. Banks, Esq. and Sharon A. Mee South Royalton Legal Clinic

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 ex-partner'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 drug-free 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.2With 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...

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