The Vermont Statutes Online

Title 33: Human Services

Chapter 51: GENERAL PROVISIONS

§ 5101. Purposes

(a) The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:

(1) To provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters.

(2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation which assure:

(A) balanced attention to the protection of the community;

(B) accountability to victims and the community for offenses; and

(C) the development of competencies to enable children to become responsible and productive members of the community.

(3) To preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety.

(4) To assure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters.

(5) To achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children.

(6) To provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are assured a fair hearing, and that their constitutional and other legal rights are recognized and enforced.

(b) The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this State to the extent the same are inconsistent with this chapter. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5102. Definitions and provisions of general application

As used in the juvenile judicial proceedings chapters, unless the context otherwise requires:

(1) "Care provider" means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.

(2) "Child" means any of the following:

(A) An individual who is under the age of 18 and is a child in need of care or supervision as defined in subdivision (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, or truant).

(B)(i) An individual who is under the age of 18, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under the age of 16 at the time the petition was filed; or

(ii) an individual who is between the ages of 16 to 17.5, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness.

(C) An individual who has been alleged to have committed or has committed an act of delinquency after becoming 10 years of age and prior to becoming 18 years of age; provided, however:

(i) that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 10 but not the age of 14 may be treated as an adult as provided therein;

(ii) that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14 but not the age of 16 shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to the court in accordance with the juvenile judicial proceedings chapters;

(iii) that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder as defined in 13 V.S.A. § 2301 if committed by an adult may be subject to delinquency proceedings; and

(iv) that an individual may be considered a child for the period of time the court retains jurisdiction under section 5104 of this title.

(3) "Child in need of care or supervision (CHINS)" means a child who:

(A) has been abandoned or abused by the child's parent, guardian, or custodian. A person is considered to have abandoned a child if the person is: unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child's care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.

(B) is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;

(C) is without or beyond the control of his or her parent, guardian, or custodian; or

(D) is habitually and without justification truant from compulsory school attendance.

(4) "Commissioner" means the Commissioner for Children and Families or the Commissioner's designee.

(5) "Conditional custody order" means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child. Any conditions and limitations shall apply only to the individual to whom custody is granted.

(6) "Court" means the Family Division of the Superior Court.

(7) "Custodial parent" means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child. The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child.

(8) "Custodian" means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont Superior Court or a similar court in another jurisdiction.

(9) "Delinquent act" means an act designated a crime under the laws of this State, or of another state if the act occurred in another state, or under federal law. A delinquent act shall include 7 V.S.A. §§ 656 and 657; however, it shall not include:

(A) Snowmobile offenses in subchapter 1 and motorboat offenses in 23 V.S.A. chapter 29, subchapter 2, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323.

(B) Motor vehicle offenses committed by an individual who is at least 16 years of age, except for violations of 23 V.S.A. chapter 13, subchapter 13 and of 23 V.S.A. § 1091.

(10) "Delinquent child" means a child who has been adjudicated to have committed a delinquent act.

(11) "Department" means the Department for Children and Families.

(12) "Guardian" means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont court or a court in another jurisdiction.

(13) "Judge" means a judge of the Family Division of the Superior Court.

(14) "Juvenile judicial proceedings chapters" means this chapter and chapters 52 and 53 of this title.

(15) "Juvenile proceeding" means a proceeding in the Family Division of the Superior Court under the authority of the juvenile judicial proceedings chapters.

(16)(A) "Legal custody" means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters which invests in a party to a juvenile proceeding or another person the following rights and responsibilities:

(i) The right to routine daily care and control of the child and to determine where and with whom the child shall live.

(ii) The authority to consent to major medical, psychiatric, and surgical treatment for a child.

(iii) The responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care.

(iv) The authority to make decisions which concern the child and are of substantial legal significance, including the authority to consent to civil marriage and enlistment in the Armed Forces of the United States, and the authority to represent the child in legal actions.

(B) If legal custody is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.

(17) "Listed crime" means the same as defined in 13 V.S.A. § 5301.

(18) "Noncustodial parent" means a parent who is not a custodial parent at the time of the commencement of the juvenile proceeding.

(19) "Officer" means a law enforcement officer, including a State Police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the Criminal Justice Training Council pursuant to 20 V.S.A. § 2358.

(20) "Parent" means a child's biological or adoptive parent, including custodial parents, noncustodial parents, parents with legal or physical responsibilities or both and parents whose rights have never been adjudicated.

(21) "Parent-child contact" means the right of a parent to have visitation with the child by court order.

(22) "Party" includes the following persons:

(A) The child with respect to whom the proceedings are brought.

(B) The custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition.

(C) The noncustodial parent for the purposes of custody, visitation, and such other issues which the court may determine are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance.

(D) The state's attorney.

(E) The Commissioner.

(F) Such other persons as appear to the court to be proper and necessary to the proceedings.

(23) "Probation" means the legal status created by order of the Family Division of the Superior Court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the Department under conditions specified in the court's juvenile probation certificate and subject to return to and change of legal status by the Family Division of the Superior Court for violation of conditions of probation at any time during the period of probation.

(24) "Protective supervision" means the authority granted by the court to the Department in a juvenile proceeding to take reasonable steps to monitor compliance with the Court's conditional custody order, including unannounced visits to the home in which the child currently resides.

(25) "Reasonable efforts" means the exercise of due diligence by the department to use appropriate and available services to prevent unnecessary removal of the child from the home or to finalize a permanency plan. When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the Court makes written findings that aggravated circumstances are present, the Court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home. Aggravated circumstances may exist if:

(A) a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;

(B) a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;

(C) a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or

(D) the parental rights of the parent with respect to a sibling have been involuntarily terminated.

(26) "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.

(27) "Shelter" means a shelter designated by the Commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.

(28) "Youth" shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 3, § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), §§ 223, 238.)

§ 5103. Jurisdiction

(a) The Family Division of the Superior Court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.

(b) Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other Family Division proceedings and any order of another court of this State, to the extent they are inconsistent. This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.

(c)(1) Except as otherwise provided by this title and by subdivision (2) of this subsection, jurisdiction over a child shall not be extended beyond the child's 18th birthday.

(2)(A) Jurisdiction over a child who has been adjudicated delinquent may be extended until six months beyond the child's 18th birthday if the offense for which the child has been adjudicated delinquent is a nonviolent misdemeanor and the child was 17 years old when he or she committed the offense.

(B) In no case shall custody of a child aged 18 years or older be retained by or transferred to the Commissioner for Children and Families.

(C) Jurisdiction over a child in need of care or supervision shall not be extended beyond the child's 18th birthday.

(D) As used in this subdivision, "nonviolent misdemeanor" means a misdemeanor offense which is not a listed crime as defined in 13 V.S.A. § 5301(7), an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64, or an offense involving violation of a protection order in violation of 13 V.S.A. § 1030.

(d) The Court may terminate its jurisdiction over a child prior to the child's 18th birthday by order of the Court. If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:

(1) Upon the discharge of a child from juvenile probation, providing the child is not in the legal custody of the Commissioner.

(2) Upon an order of the Court transferring legal custody to a parent, guardian, or custodian without conditions or protective supervision.

(3) Upon the adoption of a child following a termination of parental rights proceeding. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 224; 2011, No. 159 (Adj. Sess.), § 1.)

§ 5104. Retention of jurisdiction over youthful offenders

(a) The Family Division of the Superior Court may retain jurisdiction over a youthful offender up to the age of 22.

(b) In relation to the retention of jurisdiction provision of subsection (a) of this section, any party may request, or the court on its own motion may schedule, a hearing to determine the propriety of extending the jurisdictional time period. This hearing shall be held within the three-month time period immediately preceding the child's 18th birthday, and the order of continued jurisdiction shall be executed by the court on or before that birthday. In determining the need for continued jurisdiction, the court shall consider the following factors:

(1) the extent and nature of the child's record of delinquency;

(2) the nature of past and current treatment efforts and the nature of the child's response to them;

(3) the prospects for reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the court; and

(4) whether the safety of the community will best be served by a continuation of jurisdiction.

(c) A hearing under subsection (b) of this section shall be held in accordance with the procedures provided in section 5113 of this title. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 225.)

§ 5105. Venue and change of venue

(a) Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:

(1) the child is domiciled;

(2) the acts constituting the alleged delinquency occurred; or

(3) the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.

(b) If a child or a parent, guardian, or custodian changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the Court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5106. Powers and duties of Commissioner

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the Court, and in addition to any other powers granted to the Commissioner under the laws of this State, the Commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters:

(1) To undertake assessments and make reports and recommendations to the Court as authorized by the juvenile judicial proceedings chapters.

(2) To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.

(3) To supervise and assist a child who is placed under the Commissioner's supervision or in the Commissioner's legal custody by order of the court.

(4) To place a child who is in the Commissioner's legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution subject to the provisions of sections 5292 and 5293 of this title. To the extent that it is appropriate and possible siblings in the Commissioner's custody shall be placed together.

(5) To make appropriate referrals to private or public agencies.

(6) To perform such other functions as are designated by the juvenile judicial proceedings chapters. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5107. Contempt power

Subject to the laws relating to the procedures therefor and the limitations thereon, the Court has the power to punish any person for contempt of court for disobeying an order of the Court or for obstructing or interfering with the proceedings of the Court or the enforcement of its orders. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5108. Authority to issue warrants

(a) The Court may order a parent, guardian, or custodian to appear at any hearing or to appear at the hearing with the child who is the subject of a petition.

(b) If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the Court may issue a warrant for the person's appearance.

(c) If the child is with the parent, guardian, or custodian, the Court may issue a warrant for the person to appear in Court with the child or, in the alternative, the Court may issue an order for an officer to pick up the child and bring the child to Court.

(d) If a summons cannot be served or the welfare of the child requires that the child be brought forthwith to the Court, the Court may issue a warrant for the parent, guardian, or custodian to appear in Court with the child. In the alternative, the Court may issue an order for an officer to pick up the child and bring the child to Court during Court hours.

(e) A person summoned who fails to appear without reasonable cause may be found in contempt of court. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5109. Subpoena

Upon application of a party or on the Court's own motion, the clerk of the Court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5110. Conduct of hearings

(a) Hearings under the juvenile judicial proceedings chapters shall be conducted by the Court without a jury and shall be confidential.

(b) The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the Court finds to have a proper interest in the case or in the work of the Court, including a foster parent or a representative of a residential program where the child resides, may be admitted by the Court. This subsection shall not prohibit a victim's exercise of his or her rights under sections 5233 and 5234 of this title, and as otherwise provided by law.

(c) There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child's guardian ad litem, and the child's parent, guardian, or custodian. A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5111. Noncustodial parents

(a) If a child is placed in the legal custody of the Department and the identity of a parent has not been legally established at the time the petition is filed, the Court may order that the mother, the child, and the alleged father submit to genetic testing and may issue an order establishing parentage pursuant to 15 V.S.A. chapter 5, subchapter 3A. A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record.

(b) If a child is placed in the legal custody of the Department, the Department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the Court of the noncustodial parent's address. A hearing shall not be delayed by reason of the inability of the Department to locate or serve a noncustodial parent.

(c) The Court may order a custodial parent to provide the Department with information regarding the identity and location of a noncustodial parent.

(d) As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons. Thereafter, the Court shall mail notices of the hearing to the noncustodial parent. The noncustodial parent shall be responsible for providing the Court with information regarding any changes in address. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5112. Attorney and guardian ad litem for child

(a) The Court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.

(b) The Court shall appoint a guardian ad litem for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child. The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5113. Modification or vacation of orders

(a) An order of the Court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.

(b) Upon motion of a party or the Court's own motion, the Court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child. The motion shall set forth in concise language the grounds upon which the relief is requested.

(c) Any order under this section shall be made after notice and hearing; however, the Court may waive the hearing upon stipulation of the parties. All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5114. Best interests of the child

(a) At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the Commissioner or the attorney for the child, the Court shall consider the best interests of the child in accordance with the following:

(1) The interaction and interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other person who may significantly affect the child's best interests.

(2) The child's adjustment to his or her home, school, and community.

(3) The likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time.

(4) Whether the parent has played and continues to play a constructive role, including personal contact and demonstrated emotional support and affection, in the child's welfare.

(b) Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the Commissioner or the attorney for the child, the Court shall also consider whether the parent is capable of playing a constructive role, including demonstrating emotional support and affection, in the child's welfare. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5115. Protective order

(a) On motion of a party or on the Court's own motion, the Court may make an order restraining or otherwise controlling the conduct of a person if the Court finds that such conduct is or may be detrimental or harmful to a child.

(b) The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.

(c) Upon a showing that there is a risk of immediate harm to a child, the Court may issue a protective order ex parte. A hearing on the motion shall be held no more than 10 days after the issuance of the order.

(d) The Court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.

(e) A person who is the subject of an order issued pursuant to this section and who intentionally violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5116. Costs and expenses for care of child

(a) The Commissioner may incur such expenses for the proper care, maintenance, and education of a child, including the expenses of medical, surgical, or psychiatric examination or treatment, as the Commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.

(b) The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of this title shall be borne by the Court.

(c) The Court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.

(d) The Court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.

(e) A child support order shall only remain in effect as long as the child who is the subject of the support order is in the legal custody of the Commissioner and placed with someone other than the parent or parents responsible for support.

(f) Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.

(g) Notwithstanding subsection 5103(b) of this title, an order terminating a parent's residual parental rights ends that parent's obligation to pay child support. However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5117. Records of juvenile judicial proceedings

(a) Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the Court shall be maintained separate from the records and files of other persons. Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the Court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person. However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult, the Court, upon request of the victim, shall make the child's name available to the victim of the delinquent act. If the victim is incompetent or deceased, the child's name shall be released, upon request, to the victim's guardian or next of kin.

(b)(1) Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(A) A court having the child before it in any juvenile judicial proceeding.

(B) The officers of public institutions or agencies to whom the child is committed as a delinquent child.

(C) A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person's parole or discharge or in exercising supervision over the person.

(D) Court personnel, the state's attorney or other prosecutor authorized to prosecute criminal or juvenile cases under State law, the child's guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child.

(E) The child who is the subject of the proceeding, the child's parents, guardian, custodian, and guardian ad litem may inspect such records and files upon approval of the family court judge.

(F) Any other person who has a need to know may be designated by order of the Family Division of the Superior Court.

(G) The Commissioner of Corrections if the information would be helpful in preparing a presentence report, in determining placement, or in developing a treatment plan for a person convicted of a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3.

(2) Files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c) Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the Court may order that Court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding. Files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO $2,000.00. The public shall not have access to records from a juvenile proceeding that are filed with the Court or admitted into evidence in the divorce or parentage proceeding.

(d) Such records and files shall be available to state's attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(e) Any records or reports relating to a matter within the jurisdiction of the Court prepared by or released by the Court or the Department for Children and Families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

(f) This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 1, § 33a; 2009, No. 154 (Adj. Sess.), § 238.)

§ 5118. Limited exception to confidentiality of records of juveniles maintained by the Family Division of the Superior Court

(a) As used in this section:

(1) "Delinquent act requiring notice" means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A. § 5301(7).

(2) "Independent school" means an approved or recognized independent school under 16 V.S.A. § 166.

(b) While records of juveniles maintained by the Family Division of the Superior Court should be kept confidential, it is the policy of the General Assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont's public and independent schools.

(c) Notwithstanding any law to the contrary, a Court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school's headmaster.

(d) The written notice shall contain only a description of the delinquent act found by the Court to have been committed by the child and shall be marked: "UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00." The envelope in which the notice is sent by the Court shall be marked: "CONFIDENTIAL: TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY."

(e) The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child's school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students. Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students. "Need to know" shall be narrowly and strictly interpreted. Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child's parent, guardian, or custodian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile's probation officer.

(f) The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g) The written notice shall be maintained by the superintendent or headmaster in a file separate from the child's education record. If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred. If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h) If legal custody of the child is transferred to the Commissioner, or if the Commissioner is supervising the child's probation, upon the request by a superintendent or headmaster, the Commissioner shall provide to the superintendent or headmaster information concerning the child which the Commissioner determines is necessary for the child's rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i) A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j) Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.)

§ 5119. Sealing of records

(a)(1) In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the Court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the state's attorney, the Court finds:

(A) the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or

(B) rehabilitation of the person has not been attained to the satisfaction of the Court.

(2) At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the Court shall provide such person's name and other identifying information to the state's attorney in the county in which the person was adjudicated delinquent. The state's attorney may object, and a hearing may be held to address the state's attorney's objection.

(3) The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the Court may limit the order to the court files and records only upon good cause shown by the state's attorney.

(4) The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before July 1, 2001 shall be completed by January 1, 2010. The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed by January 1, 2008.

(b) In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the Court's own motion and after notice to all parties of record and hearing, the Court shall order the sealing of all files and records related to the proceeding if it finds:

(1) the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and

(2) the person's rehabilitation has been attained to the satisfaction of the Court.

(c) On application of a person who, while a child, was found to be in need of care or supervision or, on the Court's own motion, after notice to all parties of record and hearing, the Court may order the sealing of all files and records related to the proceeding if it finds:

(1) the person has reached the age of majority; and

(2) sealing the person's record is in the interest of justice.

(d) Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records of the Court, law enforcement, prosecution, and the Department for Children and Families related to the specific court proceeding that is the subject of the sealing.

(e)(1) Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the Court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. Copies of the order shall be sent to each agency or official named in the order.

(2)(A) Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed. This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing. The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section.

(B) Access to the special index shall be restricted to the following persons:

(i) the Commissioner and general counsel of any administrative department;

(ii) the Secretary and general counsel of any administrative agency;

(iii) a sheriff;

(iv) a police chief;

(v) a state's attorney;

(vi) the Attorney General;

(vii) the director of the Vermont Crime Information Center; and

(viii) a designated clerical staff person in each office identified in subdivisions (i)-(vii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access.

(C) Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency.

(f)(1) Except as provided in subdivisions (2), (3), (4), and (5) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the Court only upon petition by the person who is the subject of such records, and only to those persons named in the record.

(2) Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the Court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records. The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed.

(3) Upon a confidential motion of the Department for Children and Families, the Court may permit the Department to inspect its own files and records if the Court finds extraordinary circumstances in which the State's interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the State's interest. The motion may be heard ex parte if the Court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order. If the order to unseal is issued ex parte, the Court shall send notice of the unsealing to the subject of the files and records within 20 days unless the Department provides a compelling reason why the subject of the files and records should not receive notice. The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed.

(4) Upon a confidential motion of a law enforcement officer or prosecuting attorney, the Court may permit the department or agency to inspect its own files and records if the Court finds extraordinary circumstances in which the state's interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the State's interest. The motion may be heard ex parte if the Court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order. If the order to unseal is issued ex parte, the Court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice. The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed.

(5) The order unsealing a record pursuant to subdivisions (2), (3), and (4) of this subsection must state whether the record is unsealed entirely or in part and the duration of the unsealing. If the Court's order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both.

(6) If a person is convicted of a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3, the Court in which the person was convicted:

(A) may inspect its own files and records included in the sealing order for the purpose of imposing sentence upon or supervising the person for the registrable offense; and

(B) shall examine Court indices developed pursuant to subdivision (e)(2)(A) of this section. If the offender appears on any of the Court indices, the Court shall unseal any Court files and records relating to the juvenile  adjudication and shall make them available to the Commissioner of Corrections for the purposes of preparing a presentence investigation, determining placement, or developing a treatment plan. The Commissioner shall use only information relating to adjudications relevant to a sex offense conviction.

(g) On application of a person who has pleaded guilty to or has been convicted of the commission of a crime under the laws of this State which the person committed prior to attaining the age of 21, or on the motion of the Court having jurisdiction over such a person, after notice to all parties of record and hearing, the Court shall order the sealing of all files and records related to the proceeding if it finds:

(1) two years have elapsed since the final discharge of the person;

(2) the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction, and no new proceeding is pending seeking such conviction or adjudication; and

(3) the person's rehabilitation has been attained to the satisfaction of the Court.

(h)(1) In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the Court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2) In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the Court applicable to the proceeding. The Court shall order the sealing, provided that two years have elapsed since the dismissal of the charge.

(i) Upon receipt of a Court order to seal a record relating to an offense for which there is an identifiable victim, a state's attorney shall record the name and date of birth of the victim, the offense, and the date of the offense. The name and any identifying information regarding the defendant shall not be recorded. Victim information retained by a state's attorney pursuant to this subsection shall be available only to victims' advocates, the Victims' Compensation Program, and the victim and shall otherwise be confidential.

(j) For purposes of this section, to "seal" a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record. A "sealed" file or record is retained and shall not be destroyed unless a Court issues an order to expunge the record.

(k) The Court shall provide assistance to persons who seek to file an application for sealing under this section.

( l ) Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the House and Senate Committees on Judiciary no later than January 15, 2007. State's attorneys, sheriffs, municipal police, and the Judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the General Assembly. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 1, § 34; 2011, No. 16, § 3, eff. May 9, 2011.)

§ 5120. Indian Child Welfare Act

The federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5121. Case planning process

The Department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child's family, relatives, and other persons with a significant relationship to the child. Whenever possible, parents, guardians, and custodians shall participate in the development of the case plan. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5122. Misconduct during court proceedings

A person who engages in misconduct while participating in a court proceeding under the juvenile judicial proceedings chapters may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy. The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under the juvenile judicial proceedings chapters. This section shall not be construed to create a private right of action or a waiver of sovereign immunity. (Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.)

§ 5123. Transportation of a child

(a) The Commissioner for Children and Families shall ensure that all reasonable and appropriate measures consistent with public safety are made to transport or escort a child subject to this chapter in a manner that:

(1) reasonably avoids physical and psychological trauma;

(2) respects the privacy of the child; and

(3) represents the least restrictive means necessary for the safety of the child.

(b) The Commissioner for Children and Families shall have the authority to select the person or persons who may transport a child under the Commissioner's care and custody.

(c) The Commissioner shall assure supervisory review of every decision to transport a child using mechanical restraints. When transportation with restraints for a particular child is approved, the reasons for the approval shall be documented in writing.

(d) It is the policy of the State of Vermont that mechanical restraints are not routinely used on children subject to this chapter unless circumstances dictate that such methods are necessary. (Added 2009, No. 28, § 2, eff. May 21, 2009.)


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33 51 GENERAL PROVISIONS 2012-01-01 2013-06-30
33 51 GENERAL PROVISIONS 2013-07-01 2099-12-31

Access Date: 2014-01-09
Version: 2013-07-01 - 2099-12-31