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
www.vtbar.org
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
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