such time that either or both parents (parents are currently separated) can successfully achieve the following … DCF will close its case upon notice that the transfer of guardianship is final.
In other words, Jonas was told that he could end DCF’s investigation by consent- ing to the minor guardianship. He did not understand what the consequences of the guardianship would be, or what his alter- natives were. This choice amounts to co- ercion by the state, under circumstances where the parent has no procedural pro- tections. Second, DCF’s mismanagement of the guardianship case—encouraging a guardianship placement it could not in fact support—illustrates the fact that once in probate court, DCF’s responsibilities to the parent and family either disappear or be- come very difficult to manage.
b. “Kerri”
Kerri has a three-year-old daughter. At the time VPRC got involved in her case, DCF had an open case for Kerri and the child’s paternal grandmother had filed a minor guardianship petition. Kerri’s DCF social worker said that if she did not agree to the guardianship, DCF would file a CHINS petition. The social worker also said that “things would get a lot worse if [Kerri] lost in court,” and that she would be bet- ter off accepting the guardianship than al- lowing the CHINS petition to go forward. It was unclear on what basis the social work- er made this recommendation, as she had never visited Kerri in her home. As Kerri says, “if she really wanted to know what was going on she would have come by,” and “what [the paternal grandmother] said is what mattered.” Furthermore, Kerri says that nobody, even the DCF social worker pushing the guardianship, explained to her the legal and practical distinctions between a guardianship and a CHINS petition. Kerri “didn’t want [her child] to think that I gave her up so I didn’t have to go to court,” so she refused to consent to the guardianship. DCF filed a CHINS peti- tion for the child a few days later. Because this petition took precedence by law over the guardianship
petition, that petition
was dismissed. At the first hearing on the CHINS petition, legal counsel for all parties except Kerri argued that only DCF custo- dy and placement with the paternal grand- mother would keep the then two year-old child safe. VPRC, however, convinced the judge to issue custody to Kerri with identi- fied conditions to keep the risk low. Three months later, the CHINS petition was dis- missed at the request of the state’s attor- ney and before any merits hearing. Two months after that, DCF closed Kerri’s case. Again, Kerri’s case demonstrates the problem created when DCF is involved in
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any way with minor guardianship proceed- ings: DCF neatly, if unintentionally, evades the legal protections that characterize the CHINS proceeding while still exerting a great deal of influence on the parent’s de- cision to give up custody of the child.
Child Representative’s Perspective An attorney who represents children in minor guardianship cases on a pro bono basis represents a third critical perspec- tive on minor guardianships when DCF is involved. She articulated concern about the fact that minor guardianships do not adequately guarantee permanence for children: though minor guardianships are well-equipped to deal with short-term care situations, they are not equipped to deal with the issues that give rise to CHINS pe- titions.34
Guardianships are a necessary
“safety valve” for some families, but in pro- bate court there are “no resources, no per- manence, no legal representation, no road- map for reunification, and no expectations for parents.”35
The probate court’s inability
to structure a permanence-oriented solu- tion means that parents’ rights to their chil- dren and the child’s need for permanence are not adequately balanced or properly protected.36
Though it would be possible
to authorize the probate court to create a permanent guardianship, solving the per- manence problem, this would only exacer- bate the fact that parties in minor guard- ianship proceedings in probate do not have adequate procedural protections.37 Furthermore, though probate judges of- ten see the informality of probate proceed- ings as an advantage, in cases where DCF is involved and a minor guardianship is pend- ing, the family dynamics are often simply too complicated for informality.38
The com-
plexity and fraught nature of family dynam- ics in this type of situation makes it impos- sible for probate courts, with their limited procedural tools, to understand and appro- priately cope with the reality of the situa- tion.39
Similarly, from the child representa-
tive’s perspective, CHINS petitions are not filed as early or as often as they should be. The fact that families often have a long and difficult history with DCF, and the fact that many children in these cases have compli- cated problems, make it even more difficult for the probate court to accurately assess the family’s needs and successfully manage a guardianship proceeding.40
Conclusion The interests and influences of the par- ties in question determine whether they share each other’s particular concerns about minor guardianships with DCF in- volvement. All parties involved experience frustration with the status quo. Parents and children’s representatives, who may feel powerless in the face of DCF’s influence
THE VERMONT BAR JOURNAL • FALL 2011 29
Minor Guardianships Created by the Probate Court When the Department for Children and Families Is Involved
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