Children ’ s Corner |
to prove that a child was in need of care or supervision due to abuse and / or neglect . 15 However , unlike the criminal standard of beyond a reasonable doubt , the State need only to prove its case by the civil standard of preponderance of the evidence . 16 In Vermont , by statute , “ the merits hearing shall be held within sixty days from the date the Court issued its temporary care order removing the child from his or her home , unless good cause is shown .” 17 This provision in Vermont law reflects ASFA ’ s federal timeframes for a child ’ s permanency goal date which begins to toll 60 days from the date the child was removed from his or her home . 18 Furthermore , ASFA , as well as Vermont law , requires the Court to make a finding “ as to whether reasonable efforts were made ( by DCF ) to prevent unnecessary removal of the child from the home ” at the Temporary Care Hearing , but no later than 60 days from the date of the emergency care order that initially removed the child from the home . 19
Throughout family courtrooms in Vermont , the majority of the counties are struggling to achieve this goal due to the over-extended juvenile docket caused by exploding caseloads , few attorneys who choose to practice juvenile law , increased litigation due to a high volume of termination of parental rights cases , lack of physical court room space and competition for limited judge time with equally demanding civil and criminal dockets . 20 This has the unwanted effect of delaying the resolution of cases well past the 60 day goal , resulting in cases and parties lingering in “ an adversarial posture ” rather than in “ one of cooperation and collaboration .” 21 Ultimately , this delay often causes cases to stagnate , as parents are waiting for their opportunity to present their side in Court and are often distrustful of DCF social workers resulting in inadequate or a total lack of any communication between the two .
In looking to the Enhanced Resource Guidelines , this roadblock ultimately delays permanency for children and is not in the child ’ s interest . It is the very same Enhanced Resource Guidelines that focuses on the unique role of the family court judge to affect the most change in abuse and neglect cases “ through case oversight of social services fulfillment of federal and state statutory responsibilities and parental cooperation .” 22 The Enhanced Resource Guidelines encourages family court judges to not only monitor the progress of cases and issue rulings to ensure the safety , welfare and permanency of children but to “ take active steps to defuse hostilities , to gain the cooperation of the parties and to assist the parties in attacking the problem rather than each other .” 23
Once there is an adjudication of merits , whether by admission from a parent or
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upon the findings of fact from the Court after a contested hearing , the case moves to disposition . In Vermont , the disposition hearing is to be held no later than 35 days from the date of the Court ’ s findings of abuse and / or neglect . 24 The purpose of the disposition hearing is for DCF to set forth a plan to address who shall have custody of the child , an assessment of any special needs of the parent and / or child , what services the parent needs to engage in to achieve reunification and an estimated date for achieving permanency . 25 The disposition case plan serves as a roadmap for the parties to understand what each person needs to do in order for the child to be returned home . It is critical for disposition case plans to set clear and appropriate expectations as it will serve as the benchmark for future review hearings of whether a parent has made progress towards the goal of reunification .
During the conference , we were reminded that the Preventing Sex Trafficking and Strengthening Families Act of 2014 requires that every child age fourteen and older be actively involved in developing his or her case plan , which should include a “ rights document ” that specifically addresses a child ’ s rights to education , health , visitation and court participation . 26 This best practice appears to vary county by county and is often overlooked by social workers when trying to meet impending court filing deadlines . Additionally , case plans for these children ( ages fourteen and older ) should include a description of programs that will help the child to prepare for the transition from foster care to independent living . 27 Consistent application of this element should also be standard practice .
Once a disposition goal has been approved and adopted by the Court , a review hearing is required , both by federal and Vermont law . In Vermont , a post-disposition hearing is held within sixty days of the date of disposition , whereas ASFA requires the case plan to be reviewed periodically but not less than every six months . 28 The purpose of the post disposition hearing is to monitor the progress of the case plan and to address any issues earlier on in the legal lifecycle of the case , not later .
Additionally , both Vermont and ASFA require a permanency hearing to be held no more than 12 months after the date the child was first considered to have entered foster care , with Vermont allowing for more frequent court review hearings such as every three months for children ages three and younger . 29 Typically , at the permanency hearings , DCF has come to a decision as to whether to continue reunification efforts and identifies any remaining case plan goals not yet achieved by a parent or the obstacles that prevent reunification . However , if cases have stagnated and a parent
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is not likely to resume his or her parental responsibilities within a reasonable amount of time viewed from the child ’ s perspective , then DCF may file a termination of parental rights petition at the permanency hearing , thereby modifying the original disposition case plan goal . 30 ASFA requires social service agencies to pursue termination of parental rights when a child has been out of the home for fifteen of the last twentytwo months , unless the child is placed with a relative , there is a compelling reason why it is not in the child ’ s best interest or the State has not made reasonable efforts to achieve the case plan goals . 31 Unlike a post -disposition review hearing which merely tracks progress , permanency hearings trigger ASFA requirements directing family court judges to make findings about a child ’ s permanency and the reasonable efforts of social services to achieve that permanency .
Vermont ’ s CHINS docket reflects one of the most complex and challenging litigation dockets facing our legal system today . Not only are the cases involving multiple parties with evolving fact patterns , but many involve extreme neglect and / or abuse of children ages three and under . In addition , many juvenile CHINS cases reveal fact patterns of traumatized children removed from parents who were themselves once children living in abusive and / or neglectful homes . The Enhanced Resource Guidelines should be the roadmap for attorneys and social workers in advocating for children in Vermont ’ s juvenile courtrooms . In addition , the Enhanced Resource Guidelines should be the tool for family court judges to use to establish the standard of practice expected in those courtrooms to ensure better outcomes for Vermont ’ s children . ____________________ Kerry A . McDonald-Cady , Esq . is Windham County Deputy State ’ s Attorney . She was recognized in 2012 by the Justice for Children Task Force for her exemplary work handling child protection and juvenile justice cases and is now a member of that Task Force . ____________________
1
The Adoption Assistance and Child Welfare Act of 1980 , P . L . 96-272 .
2
45 C . F . R . Section 1356.21 ( b )( 1 )
3
42 U . S . C . Section 471 ( a )( 15 )( A )( b )( i ) ( in this circumstance the State of Vermont must cover the cost of foster care )
4
The Adoption and Safe Families Act of 1997 , P . L . 105-89 .
5
33 V . S . A . Section 5305 ( a ).
6
33 V . S . A . Section 5305 ( c ).
7
33 V . S . A . Section 5307 ( a ).
8
33 V . S . A . Section 5308 ( a )( 1 ) – ( 5 ); 42 U . S . C . Section 672 ( a )( 1-2 ).
9
33 V . S . A . Section 5308 ( b ).
10
33 V . S . A . Section 5308 ( b ).
11
Fostering Connections Act , P . L . 110-351 Section 103 ; 42 U . S . C . Section 671 ( 29 ).
12
Preventing Sex Trafficking and Strengthening
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