The Children’s Corner

• Publication year: 2017
• Pages: 45

THE CHILDREN’S CORNER Vol. 43 No. 1 Pg. 45 Vermont Bar Journal Spring, 2017

An Overview of The Enhanced Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases

Kerry A. McDonald-Cady, J.

On September 16, 2016, in a large conference room in Waterbury, flooded with light from a beautiful, crisp autumn day, members of the juvenile law community throughout the state, including judges, attorneys, court clerks and social workers, gathered together for the day to talk about best practices for cases involving child abuse and neglect. Specifically, the discussion centered around improving Vermont’s juvenile CHINS (children in need of care or supervision) docket by embracing and putting to practice the National Council of Juvenile and Family Court Judges’ “Enhanced Resource Guidelines.” Our guest speaker and presenter was retired Family Court Judge the Honorable Stephen 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 hearings, which would then lead to improvements in child neglect and abuse cases and better outcomes for children and their families. The need to look closer at the court system entrusted with the safety and future of abused and neglected children was frst 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 by social workers to provide families with services to allow them to achieve reunification with their children.^[2] In addition, the law imposed the requirement that family courts hold regular review hearings to carefully look at permanency goals for children and reasonable timeframes to minimize the time children remain in temporary placements. If the determination of “reasonable efforts” is not made within federally-specified time frames, the child is not eligible under Title IV-E foster care maintenance payments 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 continued concern in child neglect and abuse proceedings, leading to strict time limits for permanency and termination of parental rights hearings, including the reiteration that the child’s health and welfare were the primary concerns in child abuse and neglect cases.^[4]

The frst and most critical stage of a dependency hearing is the preliminary protective 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 transferring legal custody of a child from a parent, custodian or guardian to the Department of Children & Families (DCF).^[5] Alternatively, 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 order temporarily “conditioning” the child’s custody to his or her parent, custodian or guardian upon the adherence to or prohibition of certain conditions set by the Court.^[6] In Vermont,”a temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional 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 substantial danger to the physical health, mental 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 temporary care order...