and child, who are subject to state pres- sure with no real way to advocate for their rights. This amounts to a denial of consti- tutional rights that—at worst—can result in the permanent separation of parent and child.
Three Perspectives on the Problem
Any legal or social problem is more com- plicated than its worst manifestation. Iden- tifying a workable solution to the prob- lems posed by the conjunction of minor guardianships and DCF involvement de- pends on a comprehensive understanding of all perspectives involved, particularly be- cause they diverge dramatically. In this sec- tion I will describe three perspectives, and identify the common ground shared by all three.
DCF Perspective
DCF has never had formal policies on mi- nor guardianship petitions in cases where it was already involved with the family. A DCF administrator working at the central office explained that encouraging minor guard- ianships was an extension of the idea that families should engage in finding solutions to the problems they face and rely on their natural support networks to realize those solutions.25
guardianships give parents more opportu- nity to challenge the permanency of the child’s placement.27
tice guidelines could be formulated.32 While in a CHINS pro-
ceeding permanence is a major goal and is reflected by the laws and policies gov- erning those proceedings, minor guardian- ships are a far less formal proceeding and contain no structure designed to produce permanence for the child. Second, while minor guardianships are seen as an appro- priate solution under certain circumstanc- es, there is concern within DCF that use of guardianships went too far without a com- plete understanding of the implications, and the situation now requires corrective action.28
A DCF District Director clarified
that concern when she stated that in her time at DCF she had supervised cases in which guardianship was requested because the child was in need of care and supervi- sion according to DCF criteria. A number of those DCF cases were closed after a guard- ianship was established, on the assump- tion that the risk had disappeared and DCF had no further obligations.29
Though later The cases best suited for minor
guardianships did not reach the standard necessary to commence a CHINS petition, and involved families who wanted to mini- mize DCF’s involvement and could identify a guardian who would decrease the risk to the child.26
Concerns expressed by the same admin- istrator focused on two factors. First, minor
the DCF central office said they would not have supported those actions, at the time disposing of cases in this way was encour- aged.30 From DCF’s perspective, encouraging minor guardianships in open cases was be- nignly motivated and based on the idea that families should be given the oppor- tunity to solve their problems themselves. The resulting due process and service con- cerns were unintended consequences of that policy.31
Recently, the DCF Deputy
Commissioner circulated a memo ordering DCF workers to stop encouraging minor guardianships until new policy and prac-
This
new policy reflects the realization that mi- nor guardianships have been encouraged inappropriately and have far more complex implications than were previously under- stood.
Parent’s Perspective This section focuses on the experience of
two of the Vermont Parent Representation Center’s clients, both of whom dealt with a minor guardianship petition while DCF had an open case. In both cases, the guardian- ship was inappropriately encouraged and the parent felt both coerced and disenfran- chised.33
a. “Jonas”
Jonas has a three-year-old son. He had just been discharged from a drug treat- ment center when he contacted VPRC at the behest of the DCF investigator. Jonas’s parents had filed a minor guardianship with the probate court and a hearing was sched- uled for the next day. The DCF investigator told Jonas that if he agreed to the minor guardianship, DCF would close the open case on the child’s mother. The investiga- tor later said that she had kept the case un- der investigation for three months waiting for the guardianship to occur so that DCF could close the case. However, because Jonas’s father had been substantiated for child abuse eight years earlier, DCF with- drew their support for the guardianship and no longer believed a guardianship was necessary at all. DCF’s central office sup- ported the position that a guardianship was not appropriate.
DCF failed to communicate their change
in position to the probate court, which granted minor guardianship to the pater- nal grandparents. However, DCF’s new po- sition meant that neither Jonas nor his fa- ther was permitted to care for the child alone. The probate court ordered DCF to file a reunification plan, but DCF did not do so. Three months later, the probate court dismissed the guardianship and the family court gave Jonas full parental rights and re- sponsibilities.
This case demonstrates two major con- cerns about minor guardianships and DCF involvement: the inappropriate actions DCF took to encourage consent to the guardianship, and the inability of DCF to manage the case properly. First, DCF clos- ing the case was conditioned on accep- tance of the minor guardianship. The ex- cerpt below is from the grandparents’ pro- bate petition: All parties present agreed that DCF would be able to close the current in- vestigation if guardianship of the mi- nor child was transferred to the pater- nal grandparents, and that this guard- ianship would remain in effect until
28 THE VERMONT BAR JOURNAL • FALL 2011
www.vtbar.org
Minor Guardianships Created by the Probate Court When the Department for Children and Families Is Involved
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44