by Hon. George K. Belcher


Custodial Kinship Guardianships for Minors: A Response to Julia Zalenski


In the fall issue of the Vermont Bar Jour-


nal, an article was published concerning minor guardianship cases in probate court where the Department for Children and Families has past involvement. The author of the article promised to “address the com- plex problems” and “make recommenda- tions for policy and action on this issue.” Although I welcome discussion of probate issues in the bar journal, I fear that some of the article’s errant themes require a re- sponse.


While the article speaks for itself, its au-


thor, directly or by implication, seemed to make the following arguments: (1) parents’ constitutional rights are being trammeled in probate minor guardianship actions; (2) the Department for Children and Families is shirking its responsibility by channeling cases to probate court; (3) the influence of the Department for Children and Families outside of court constitutes “state action” in taking away parental rights if the parents later agree to a consensual guardianship; and (4) the informality of probate court pro- vides inadequate due process protection to parents in minor guardianship cases. These points were made with a self-described “comprehensive understanding of all per- spectives involved.” Unfortunately, the au- thor failed to consider the perspective of the proponents of many minor guardianship petitions: the kinfolk who not only petition for the guardianship, but who step forward and take on the responsibility of children who cannot live with their parents. Likewise, the viewpoint of the child protection system was given short shrift. With this in mind, here are some counterpoints that should be considered before accepting the conclu- sions of the earlier article.


The Problem as Described by Ms. Zalenski


The author titled her article in part as a


“presentation of the problems.” The un- fortunate ambiguity of one of the author’s opening statements1


appeared to suggest


that there is a “statistically clear problem” underlying the author’s conclusions. In fact, a closer reading clarifies the author’s ac- knowledgment that there is little or no em- pirical data defining what problems, if any, exist in the topic area. The lack of an empiri- cal foundation for the inquiry is amplified by the author’s subsequent reliance on anec- dotal evidence in the form of two case his- tories provided by the Vermont Representa-


www.vtbar.org


tion Center. These two histories are the ap- parent source for the broad general factual conclusion in the introduction. The author later stated that in minor guardianship cases the family lacks procedural protection be- cause they have “no right to counsel.” Her claim that parties have no right to counsel is factually incorrect (she probably means that parents have no right to appointed counsel as is true in domestic relations cases and re- lief from abuse cases, any of which can re- move children from a custodial parent). She also amplified “the problem” to include that the Department for Children and Fam- ilies “is effectively absolved of certain le- gal responsibilities to the parent and child, who are subject to state pressure with no real way to advocate for their rights.” This sweeping statement is not only factually in- correct (DCF has no legal responsibilities where a child’s safety is not at risk), but it also demonstrates a glaring misunderstand- ing of the nature of kinship care.


The Defining Difference Between Probate and CHINS


The author attempted to describe the le-


gal differences between child abuse and ne- glect proceedings in the family division and the minor guardianship process in the pro- bate division. She pointed out that the right to assigned counsel, the level of formality, and the nature of the post-appointment services are different. Although she did not mention these differences, there are also dif- ferences in the rules of evidence, the routes of appeal, and the overall jurisdictions. One prime reason for the procedural differenc- es between the two types of proceedings is that the moving force for CHINS proceed- ing is the state acting through the Depart- ment for Children and Families or the state’s attorney. With the power and resources of the state to investigate, prepare, and prose- cute the case (including child protection ex- perts), a parent defending a CHINS is en- titled under Vermont statutory law to state- appointed counsel “when the court deems the interests of justice require.”2


In a minor


guardianship, the party who petitions for the guardianship is most often another fam- ily member: a grandmother, a grandfather, an aunt, or an uncle.3


Usually, these people


are family members who have been recruit- ed by the parents to “step-up” and take custody of a child while the parent is trying to resolve a problem. Sometimes they are grandparents who make the difficult choice


THE VERMONT BAR JOURNAL • SPRING 2012


to protect a grandchild when they see that their own child is unable to parent. More often than not, the petitioning kin are not represented. More often than not, they are not people of means. Invariably, they do not have social workers, police, or experts work- ing with them to prepare and pursue a case in any court. Since the matter is between family members, the entire dynamic is one of intra-family problem-resolution. In a kin- ship guardianship, taking the child “from the family” is usually not an option, since the only issue is whether the child needs to temporarily live with another family member while the parent resolves a problem.


Some Social Differences Between Probate and CHINS


Most minor custodial guardianships are


created in probate court with the consent of the parents. In these cases the legal prereq- uisites are that the guardianship is “in the best interests of the child” and no parent objects.4


For a parent who needs residen-


tial substance abuse treatment, this is a re- spectful way of providing surrogate parent- ing while the parent is incapacitated or un- available. In contrast, in a CHINS proceed- ing, the court acquires jurisdiction upon an allegation that the child is abused or ne- glected by the parents or beyond the con- trol of the parents. Moreover, once the case is accepted by the family court following a finding of abuse or neglect, control of the case usually lies in the recommendations of the Department for Children and Fami- lies. While DCF offers beneficial services to both foster families and rehabilitating par- ents, the family often experiences a loss of control—another reason why parents often prefer the private guardianship route of- fered through probate court. Finally, recent child protection research has shown that ex- tended family often offers more effective and informed solutions to child protection problems with better outcomes for children. That is one reason why the Department for Children and Families has invested in fam- ily engagement strategies and why probate guardianships have value for families who take control of their own family problems. There is a value for the state to provide a forum for family resolution of issues within a legal framework outside of CHINS cases. This value of the probate system was not mentioned by Ms. Zalenski.


One family law commentator has written, 25


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