Procedural and Substantive Differences, and the Associated Concerns The fact that both of these proceedings could be used effectively to remove a child from a parent’s custody when concerns arise about the child’s safety or the par- ent’s suitability as a caretaker initially may disguise critical differences between the proceedings. For one, the parties to guard- ianship proceedings are generally all fam- ily members. The fact that no state actor is officially involved, as well as the fact that the case takes place in the probate court, means that guardianship proceedings are usually characterized by a certain informal- ity. CHINS proceedings, on the other hand, are brought by the state. This level of state intervention in family life carries with it greater formality and triggers different due process protections: in minor guardian- ship proceedings the parties have no right to counsel, while in CHINS proceedings all parties have the right to be represented.18 The fact that parties to a minor guard- ianship in probate court have no right to counsel raises the concern that in mi- nor guardianship cases with DCF involve- ment, the family lacks procedural protec- tion despite the state’s de facto involve- ment in the guardianship case. A Vermont probate court judge, speaking about the fact that counsel is not guaranteed in mi- nor guardianship cases, noted that “If no- body is represented [in minor guardianship proceedings], which is most common, the judge is responsible for nudging parties into agreement … Cases with counsel in- volved are more formal, and adhere more closely to the adversarial model” (empha- sis added. The judge considered informal- ity to be beneficial in many respects, saying that it can create a more cooperative dy- namic within the family and allow the par- ties to come to a mutually agreeable so- lution.19
with the family.20
Families with a child in
foster care also receive the assistance of a state social worker and Family Servic- es, while families with a child in guardian- ship are guaranteed no such assistance despite the fact that their needs may be similar. Families with a child in foster care also are guaranteed continued legal assis- tance for court proceedings, including ter- mination of parental rights. Families with minor guardianships receive no such sup- port. Neither do families with minor guard- ianships receive reimbursements for neces- sary transportation expenses (for example, to school and medical appointments).21 The problem with these disparities is clear: though minor guardianships with DCF involvement may function much like a foster care arrangement following a CHINS petition (particularly as kin are prioritized caregivers under the law governing CHINS proceedings),22
there are substantive dif-
However, the critical problem hid- den in this perspective is that the majority of parties to minor guardianship proceed- ings do not have counsel to protect their rights and interests, even when those par- ties are subject to the pressures inherent in DCF involvement with their children. To state the problem a different way, minor guardianships may effectively transfer the power dynamic between families and DCF into the probate court, where DCF is an un- official actor and the families have less pro- cedural protection.
Another dramatic distinction between minor guardianships and CHINS proceed- ings is the fact that children in foster care after a CHINS proceeding have access to a greater range of services than children in minor guardianships. Foster care reim- bursement rates are substantially higher than the Reach Up grants guardians may be eligible to receive, and the disparity in- creases when multiple children are placed
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ferences between the proceedings that have measurable impact on the quality of the child’s education, health, and relation- ships with his or her family. This is a particu- lar problem for the many families who des- perately need the services associated with a CHINS proceeding to have any hope of giving the children involved the care they need, or of reuniting those children with their parents. Furthermore, many families in this situation do not understand the sub- stantive differences between the proceed- ings, and so are not truly prepared to take on the responsibilities of minor guardian- ship with no support services. A represen- tative for Vermont Kin as Parents stated that minor guardianships can be a catch-22 for families, and that family members who become guardians do not always under- stand the ramifications of guardianships.23 Similarly, a DCF District Director said that she had personally worked with several families who initially chose a minor guard- ianship, then later said they had not fully understood the ramifications and wished they had not accepted the guardianship, even if the alternative was a CHINS pro- ceeding.24
Conclusion The differences between minor guard- ianships and CHINS petitions can unac- ceptably alter the power dynamic between parents and DCF. Minor guardianships may allow DCF’s influence to extend to the pro- bate courts where families do not receive protections and services they would be af- forded in a CHINS proceeding in family court. This occurs despite the fact that DCF may not be a named party in interest in the minor guardianship, and so has no role in the case that can be properly defined and supervised by the court. Under these cir- cumstances, DCF is effectively absolved of certain legal responsibilities to the parent
THE VERMONT BAR JOURNAL • FALL 2011 27
Minor Guardianships Created by the Probate Court When the Department for Children and Families Is Involved
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