by Julia Zalenski


Minor Guardianships Created by the Probate Court When the Department for Children and Families is Involved: Problems with Possible Solutions


This article seeks to address the complex


problems that arise when a minor guard- ianship is established in probate court un- der circumstances when DCF is also in- volved with the family. A dearth of em- pirical research on this subject means that this article will focus less on legal analysis of a statistically clear problem and more on clarifying the divergent and sometimes conflicting perspectives on use of minor guardianships in these cases through the lens of the fundamental legal elements at stake. I will first identify and analyze the ba- sic legal elements of the question, to pro- vide a foundation for further research and policy. Second, I will outline the fundamen- tal differences between minor guardian- ships and the analogous state proceed- ing, Children in Need of Care or Supervi- sion (CHINS), and will identify the key con- cerns about those differences. Third, I will provide several perspectives on the use of minor guardianships from individuals in- volved in various capacities. The article will conclude with recommendations for policy and action on this issue, as well as a note on the wider implications of the problem.


Constitutional Rights of Parents


New policy and practice must work within the framework of the constitution- al right of parents and children to main- tain their family life free of government in- terference.1


In minor guardianship cases


with DCF involvement, the critical principle is that “when the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair proce- dures.”2


The procedural protections that


exist for parents in CHINS proceedings rec- ognize this due process requirement. If the state is involved with a family and function- ally encouraging a minor guardianship, it stands to reason that the parents’ constitu- tional right to maintain their family integrity is implicated and the associated due pro- cess right is triggered.


In re K.M.M. Though this article will not delve too


deeply into the details of the case law on the constitutional right to family integri- ty, there is ample and consistent case law supporting it both on the state and feder- al levels. A recent Vermont Supreme Court case, In re K.M.M., clarified the strength of


26


this right specifically as it pertains to mi- nor guardianships.3


The grandfather of the


child in question had been her guardian since 2001, when she was eleven months old. In 2002 the child’s father petitioned to terminate the guardianship, but it was not until 2009 that the superior court heard the case on appeal from the probate court. The superior court denied the father’s motion to terminate the guardianship, and both parties appealed.4 The Vermont Supreme Court held that the father of the child was, as a matter of law, entitled to the presumption that his custody was in his daughter’s best inter- ests.5


In other words, the court held that


creating or upholding a minor guardianship against a parent’s will, without giving that parent the full benefit of the parental pre- sumption (which “accords with the funda- mental premise … that a parent’s right to care for his children is a fundamental lib- erty interest”6


due process rights.7


) is a violation of the parent’s While the court did not


frame this decision as a change in the exist- ing law,8


the case clarified any misconcep-


tion that minor guardianships should have the effect of denying parents their consti- tutional rights, regardless of the nature of the proceeding.


Because of the extreme vulnerability of


parents facing minor guardianships when DCF is involved, any DCF involvement urg- ing a parent to consent to a minor guard- ianship does have the effect of denying parents their rights. The parents general- ly do not fully understand the choices they face, and for a variety of reasons those choices are never fully explained to them. Furthermore, parents rarely feel that they are free to refuse to consent to a minor guardianship without facing further diffi- culty, even retribution, from DCF. As seen in the narratives above, some parents ex- perience overt coercion by DCF in favor of minor guardianships, and feel—accurate- ly or not—that DCF is threatening them with a prolonged and difficult process that will ultimately produce a more traumat- ic outcome. The only outcome of refusing a guardianship may be a CHINS petition that would have been filed regardless, but when DCF is involved with a minor guard- ianship parents never have a real opportu- nity to decide whether they are truly willing to accept the consequences and disadvan- tages of minor guardianships.


THE VERMONT BAR JOURNAL • FALL 2011


In sum, parents have a strong and rea- sonably well-defined constitutional right to maintain the integrity of their family, as well as associated due process rights. Minor guardianships are designed to be a solu- tion for families, not a tool of the state, and therefore the due process rights associat- ed with CHINS proceedings do not attach to minor guardianship proceedings. When DCF is involved with a minor guardianship proceeding, it ceases to be a benign alter- native for families, and instead becomes a proceeding that denies parents due pro- cess and absolves the state of the responsi- bilities associated with interfering with the right to familial integrity.


Minor Guardianships and CHINS Proceedings


Minor guardianships created by the pro- bate court are authorized under specific circumstances described in terms of the parent’s capacity to care for the minor.9 By statute, there are five circumstances in which minor guardianships can be created, the most pertinent of which is “when the parent is … incompetent or unsuitable to have the custody of the person of the mi- nor.”10


In other words, the probate court


can create a minor guardianship when “a person interested in the welfare of the mi- nor”—typically a family member—petitions the court to do so and is able to show that the parent is unsuitable (or “unfit”).11


When


a guardianship is created under this sub- section, the parent may petition to have the guardianship removed,12


and the pro-


bate court will grant the petition if the par- ent “is the proper person to have the care and custody of the child.”13 The primary alternative way that a parent may lose custody over a child is through the state proceeding known as CHINS, or Child in Need of Care or Supervision. If DCF believes that a child is in need of care or supervision,14


there is a finding of CHINS, there are seven alternative possibilities for custody of the child.16


Ultimately, the child will be reuni-


fied with the parent, the child will be placed in permanent or non-permanent guardian- ship, or the parent’s parental rights will be terminated and the child will be released for adoption.17


www.vtbar.org


and request that the state’s attorney com- mence a CHINS petition in family court.15


it may prepare an affidavit If


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