and frustrated with the probate court’s handling of their case, blame DCF’s coer- cive or insufficient tactics and the probate court’s inability to properly manage guard- ianships. DCF workers and probate judges who are just trying to help families function safely blame parents for the many complex problems that limit their ability to cope with their children. Too often these frus- trations prevent effective communication between the parties, obscuring the fact that all parties agree that the legal rights at stake—both parent’s and child’s—must be better protected by policy and prac- tice. Though they may disagree about what form that protection should take, an open dialogue in which all parties acknowledge each other’s shared goals and different bi- ases would make it possible to create bet- ter policy and practice.
Wider Applicability and Recommendations
The problem this memo addresses is not exclusive to Vermont, or to family law. It occurs whenever a state agency influenc- es a proceeding that produces an outcome a corresponding state proceeding might otherwise produce, but without the rights and responsibilities that attach to the state proceeding. A critical step toward funda- mental fairness in the law is ensuring that no area of law contains these hidden dis- parities, which have such dangerous poten- tial for abuse.
DCF Policy Guidelines
On a specific level, DCF must work to develop specific policy guidelines that re- strict any influence on minor guardianships to the narrow range of cases for which they are appropriate, and ensure that families do not lose necessary services and sup- port when they choose minor guardian- ships. Minor guardianships are not appro- priate for all cases when a CHINS proceed- ing is a possibility, and DCF must be able to ensure that (1) the proposed guardian is suitable, (2) the guardianship is appropri- ate given the family dynamic, (3) the fam- ily will not lose services and support nec- essary to reunify the parent and child if a guardianship is created, (4) the parent fully understands the difference between minor guardianships and CHINS proceedings as well as the consequences of consenting to a guardianship, and is given adequate le- gal assistance in reaching a fully informed decision, and (5) supervision of DCF work- ers is adequate to ensure that no parent is coerced into consenting to a guardianship for the sake of avoiding a CHINS proceed- ing. Though these goals will be difficult to achieve, they are necessary to ensure that minor guardianships become, and remain, a fair and useful proceeding for all parties.
30
It may well be the case, however, that the
power dynamics inherent in minor guard- ianship cases with DCF involvement means that the proceedings can never occur in a way that is fully respectful of the rights at stake. If that conclusion is reached, DCF must take steps to ensure that it is never involved in a minor guardianship proceed- ing—in other words, where DCF is involved, the only available vehicle for creating al- ternative custody arrangements would be a CHINS proceeding. The concern if this course were to be adopted is that families who wish to establish minor guardianships may no longer have that option if DCF is involved already. Even if minor guardian- ship were appropriate for the family, DCF may not have the option of allowing fami- lies to seek minor guardianships, effectively restricting the family’s freedom to choose and privately arrange the custody situation that is best for them. On the other hand, a DCF policy of complete non-involvement with minor guardianships may mean that only those families for whom minor guard- ianship is truly appropriate will affirmatively seek it.
The implications of each policy option
are complex, and not easy to disentangle. They must, however, be carefully consid- ered before new policy is enacted.
Protocol for Relationship Between DCF and Probate Court Furthermore, the probate courts should
work to formulate a protocol for regulat- ing their relationship with DCF. When DCF is involved with minor guardianships, they are not involved in any official court-recog- nized capacity, and so the court lacks the means and authority to cope with the com- plexities DCF involvement implies. This means that minor guardianship hearings when DCF is involved with the case are fac- tually and legally incomplete. Furthermore, DCF involvement means that there is al- ways another power dynamic playing out outside the courtroom between DCF and the parents involved. While this dynamic may not compromise the basic function of the court, it does compromise the integrity of the outcome. If the probate courts de- veloped protocol to better manage their relationship with DCF, minor guardianship proceedings would become more open and the outcomes more just. While a pre- cise detailing of possible procedural mech- anisms exceeds the scope of this article, perhaps they could include the power to bring DCF into the proceeding as a party in interest, or even the power to suspend DCF involvement with the family while the minor guardianship proceeding is resolved. Again, this article does not purport to
discuss the full implications of these pos- sibilities, or imply that they would be ac- ceptable policy choices. The full scope and
THE VERMONT BAR JOURNAL • FALL 2011
reach of any new policies must be careful- ly considered before enactment. Hopefully, this process will result in new policies that work within legal boundaries to protect those who are most vulnerable and to pro- duce just and equitable solutions for Ver- mont families.
___________________ Julia Zalenski is a second-year law stu- dent at the University of Iowa and was a legal intern with the Vermont Parent Rep- resentation Center, Inc., during the sum- mer of 2011. This work and its recommen- dations are those of Julia Zalenski, not the Vermont Parent Inc.
Representation
____________________ 1
(1982). 2
3 Center,
Santosky v. Kramer, 455 U.S. 745, 753-54 Santosky, 455 U.S. at 753-54.
In re K.M.M., 22 A.3d 423 (Vt. 2011). 4 K.M.M., 22 A.3d at 425, 428. 5 K.M.M., 22 A.3d at 432. 6 K.M.M., 22 A.3d at 431. 7 K.M.M., 22 A.3d at 431-32. 8 K.M.M., 22 A.3d at 431-32.. 9 14 V.S.A. § 2645. 10 14 V.S.A. § 2645(2). 11 14 V.S.A. § 2645. 12 14 V.S.A. § 3003. 13 14 V.S.A. § 3004.
14
Department of Children and Family Services Policy 50,
http://dcf.vermont.gov/sites/dcf/files/ pdf/fsd/policies/50__ Child_Abuse___N_Defini-
tions__3_30_11.pdf. 15
See 33 V.S.A. Ch. 53. 16 33 V.S.A. § 5318. 17 33 V.S.A. § 5321.
18 33 V.S.A. §§ 5305, 5306, 5307. 19 Interview with Vermont Probate Court Judge,
July 14, 2011 (emphasis added). 20
Lynn Granger, Executive Director for Vermont Kin As Parents, The Impact On Children: A com- parison of supports available to children in foster care and supports available to children placed with a relative under the Juvenile Justice Pro- ceedings Act (JJPA) or through Probate Court,
http://www.vermontkinasparents.org. 21
Id. 22 33 V.S.A. § 5318.
23 Interview with representative for Vermont Kin Interview with DCF District Director, July 25, Interview with DCF central office administra- Id.
As Parents, July 13, 2011. 24
2011. 25
tor, July 1, 2011. 26
27 28
Id. Id.
29 Interview with DCF District Director, July 25, Id.
2011. 30
31 Interview with DCF central office administra- Cindy Walcott, Memorandum on Use of Pro- All information in parent narratives from Interview with pro bono child’s representative, Id.
tor, July 1, 2011. 32
bate Court Minor Guardianships, June 3, 2011. 33
VPRC’s client records and interviews. 34
July 20, 2011. 35
36 37 38 39 40
Id. Id. Id. Id. Id.
www.vtbar.org
Minor Guardianships Created by the Probate Court When the Department for Children and Families Is Involved
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