Vermont Bar Journal
Spring 2009 - #7.
The Practical Implications of the Newly Enacted Vermont Juvenile Judicial Proceedings Act (JJPA)
THE VERMONT BAR JOURNAL Volume 35, No. 1 SPRING 2009
The Practical Implications of the Newly Enacted Vermont Juvenile Judicial Proceedings Act (JJPA)by Pamela A. Marsh, Esq. & Kathryn A. Piper, Esq.
The newly enacted Vermont Juvenile Judicial Proceedings Act (JJPA) became effective on January 1, 2009. In the Winter 2008/2009 Vermont Bar Journal, Administrative Judge Amy Davenport, in an interview with Supreme Court Justice Marilyn Skoglund, gave an overview of the process by which this legislation was developed and the major improvements made by the JJPA. The purpose of this article is to address some of the practical implications of the new act and to provide some practice tips for its implementation.
Chapter 53: Children in Need of Care and Supervision
Standards for Removal of Child
Unlike the prior legislation, the new JJPA sets forth specific threshold findings before custody may be transferred away from a custodial parent at the temporary care hearing (formerly called the detention hearing). Section 5308 (a) requires the court to return custody to the child's custodial parent unless the court finds that return would be contrary to the child's welfare because any of the following exist:
* Return will result in substantial danger to the child; * There has been physical or sexual abuse of the child or another child in the household; * There is a substantial risk of physical or sexual abuse; * The child has been abandoned by the custodial parent; or * The child or another child in the household has been neglected.
The JJPA adds a new option for courts considering whether a child should be removed from the home. The court may now issue a conditional custody order when the Department applies for an emergency care order, or at a temporary care hearing. A conditional care order allows a child to remain in the home with the current custodian, provided that the conditions set forth in the order are met. This provision allows the court, for example, to order an abusive partner out of the home, or to order a custodial parent to participate in drug screening and treatment in order to keep their child at home.(fn1)
The criteria for removal of the child from the home at the temporary care hearing are not incorporated into the statutory provisions dealing with the final disposition order.(fn2) One of the revision committee's objectives in revising the former Juvenile Proceedings Act was to maintain the precedential value of a whole body of case law and, therefore, there were provisions that the committee did not choose to revise in any significant way. The grounds for transferring custody away from a parent at disposition are one of those provisions.(fn3) Thus, it is neither necessary nor sufficient for a case to meet the criteria set forth in Section 5308(a) before a child may be placed into DCF custody at disposition. Before that happens, there must still be a finding by the court that the parents are "unfit and demonstrably incapable of providing an appropriate home, and that separation is necessary for the child's welfare or in the interest of public safety."(fn4)
Another significant change made by the new legislation is to provide for early identification and location of absent parents (who are most often fathers) and to grant them custodial preference when removal from the custodial parent is warranted. Too often, in proceedings under the prior statute, fathers were identified or notified only months after a child had been placed in foster care, often long after the child had formed an attachment with the foster parent.
Studies have shown that engaging fathers in their children's lives is linked to improved mental and physical health, responsible sexuality, and financial security for a child.(fn5) Moreover, involving fathers early in the child protection process has the added advantage of increasing potential kinship placements for children by helping identify paternal relatives who may be willing to provide care for the child.
Section 5308(b) of the JJPA creates an order of preference for transfers of custody to others where full custody cannot be returned to the custodial parent. If the court is going to order removal of custody from the custodial parent, a transfer of custody to the noncustodial parent is given preference over all the other custody options provided the noncustodial parent personally appears and presents to the court
a care plan that describes the history of the noncustodial parent's contact with the child, including any reasons that did not occur, and that addresses: (i) the child's need for a safe, secure and stable home; (ii) the child's need for proper and effective care and control; and (iii) the child's need for a continuing relationship with the custodial parent, if appropriate.
This provision balances the father's rights with the child's right to the maintenance of existing attachments and to a stable, secure, and safe home that meets the child's needs.
Section 5308(2)(C) states that the court shall transfer legal custody to the noncustodial parent unless it finds by a preponderance of the evidence that the transfer would be contrary to the child's welfare because either the care plan fails to meet the statutory criteria or there are facts that establish the same criteria that must be met before a child may be removed from the custodial parent. In other words, under those circumstances, the noncustodial parent is entitled to the same presumption of parental fitness as the custodial parent.
The courts have long held that not all biological fathers are entitled to the constitutional protections afforded to a parent and the corresponding presumption of parental fitness. The U.S. Supreme Court has held that a biological father must first "demonstrate a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child."(fn6) The Court reasoned:
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.(fn7)
Once a father is identified, attorneys will need to take steps to determine the extent of his prior involvement in the child's life by asking the following questions:
* Does he regularly pay child support? * Is his name on the birth certificate? * How often does he visit the child? * Did he provide the mother with assistance during her pregnancy? * Did he register with the Putative Father Registry? * Does he attend school meetings or doctor's appointments for the child? * Does he send gifts or cards to the child? * Did the mother prevent the father from developing a relationship with the child? Is there any evidence of fraud or concealment by the mother? * Did the father make all reasonable efforts to form a relationship with his child and to assert his parentage?(fn8)
Attorneys for fathers who have had little experience or opportunity to parent will need to advocate strongly for the provision of services for their clients. As Andrew Cohen points out in his article "Representing Nonresident Fathers in Dependency Cases: "Unless [such a] father receives services to learn to parent, he is likely to fail, especially given the complexities of parenting children with histories of abuse or neglect."(fn9) Cohen advises that attorneys for fathers encourage the father to engage in services, to...