DCF even continue to carry an open case? If the parent is not entitled to services and supports unless the case goes to CHINS or unless the risk to the child remains high, how can DCF offer these services where a custodial guardian is appointed? From what fund will the attorneys be paid who compe- tently advise parents of the subtle differenc- es between CHINS and private guardian- ship? If DCF explains options and frankly ex- plains the loss of control and the legal effect of the parent being substantiated of child abuse or neglect, would not any parent un- derstand this to be channeling the parent toward private guardianship? Ms. Zalenski acknowledged that her stated goals “will be difficult to achieve.”


She then shifted to an alternative that is just as unworkable. She suggested that if DCF has any involvement with a family then “the only vehicle for creating alternative custody arrangements would be a CHINS proceeding.” This solution ignores the cas- es that are troublesome but have not risen to the CHINS level; it ignores cases where a previously investigated parent has an en- lightened moment of insight and decides to enroll in in-patient rehabilitation. What if DCF has investigated but has not substan- tiated—would guardianship be foreclosed? She suggested that “even if minor guard- ianship were appropriate for the family, DCF may not have the option of allowing families to seek minor guardianships … ” How will DCF prevent a family from seeking a minor guardianship? Does that make sense? Does it encourage families to resolve their own problems?


The final policy suggestion offered by the


author was that there should be a proto- col for the relationship between DCF and the probate division. She asserts that the guardianship hearings are currently factu- ally and legally incomplete. Apparently she is unaware that DCF workers are sometimes subpoenaed to testify in minor guardian- ship hearings (sometimes sua sponte). She suggested that DCF might be ordered to become a party in interest in the probate case. She neglected to discuss the ramifi- cations of including DCF as a party. Would the duty of DCF be to the parties or to the court? Would that not distract DCF from their important child protection functions? What event would trigger involuntary par- ty status? When would it end? Without a duty for DCF to provide social work servic- es based on identified risk or a finding of CHINS, would DCF be anything more than a witness? If DCF becomes obligated to pro- vide social work services with party status, would this not expand DCF beyond its lim- its? Would the ability of families to solve the family’s own problems be stifled? The author’s suggested policy solutions to “the problem” are poorly defined and unrealistic.


28


The Lack of Legal Precedent or Authority for the Arguments


The article proposed to analyze “the


problem” “through the lens of the funda- mental legal elements at stake.” Interest- ingly, the author cited no legal authority for the principle that a DCF investigation or threat of action by DCF constitutes an event that justifies additional legal protections in due process. Possibly she was unaware that the constitutional protection of due process does not create an absolute right to court- appointed counsel in a state-pursued ter- mination of parental rights case.12


Likewise,


there was no legal authority cited for the proposition that families are entitled to fos- ter care supports or reunification services to parents without a taking of custody by the state or a finding of CHINS. The author cited the recent case of In re as clarifying any misconception that


KMM13


minor guardianships may have the effect of denying parents their constitutional rights, “regardless of the nature of the proceed- ing.” The case actually relied upon a long line of Vermont cases, including Bioni v. Haselton14


in that position since February of 1991.


“A dearth of empirical research on this subject means that this article will focus less on legal anal- ysis of a statistically clear problem … ” Julia Za- lenski, Minor Guardianships Created by the Pro- bate Court When the Department for Children and Families Is Involved: Problems with Possible


____________________ 1


Solutions, VT. B.J., fall 2011, at 26. 2


13 V.S.A. § 5232 (3). This section does not au- tomatically require appointment of counsel in all pre-termination CHINS cases, however. See In re G.F., G.F., & J.F., 2007 Vt. 11, 923 A2d. 578


(2007). 3


Recent data suggests that 46% of custodial guardians of minors in Vermont are grandmoth-


ers of the children. 4


14 V.S.A. § 2645 (4). 5 2 ANN HARALAMBIE, HANDLING CHILD CUSTODY,


ABUSE AND ADOPTION CASES, 39-40 (2009-2011). 6


Sometimes experienced counsel direct their clients to probate court without counsel with the hope that a reasonable solution will be crafted by the family. They can do so with the understanding


that a de novo appeal exists. 7


(1980). 8


Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303 VBA Seminar entitled Custodial Kinship Guard-


ianship: The Process and the Law, Jan. 27, 2011. 9


in 1926, which first recognized a


parent’s right to custody and the presump- tion that a child does best when raised by his parent. The concept was reiterated in another modern Vermont Supreme Court case dealing with this subject, Boisvert v. Harrington.15


In short, In re KMM said noth-


ing that was new law but simply applied the existing standards. It is ironic that in the case In re KMM the Vermont Supreme Court reversed a de novo decision of a su- perior court trial judge with all the formal trappings that Ms. Zalenski found absent in probate court.


Conclusion


In writing this response I do not mean to imply that the probate process concern- ing minor guardianships is flawless. There are improvements that can and should be made. A legislative committee is underway to study and make recommendations to the legislature concerning the area of mi- nor custodial guardianships. The Depart- ment for Children and Families, Casey Fam- ily Services, kinship support organizations, the Vermont Bar Association, the Defender General, and the Vermont Supreme Court have been responsive to the call and have delegated participants to this committee. We are hopeful that improvements will be suggested to the legislature. On one point I agree with Ms. Zalenski: the issues are com- plex and require a thorough analysis of many points of view, coupled with an accurate as- sessment of the applicable law. ____________________ Hon. George K. Belcher is the probate judge in Washington County and has been


THE VERMONT BAR JOURNAL • SPRING 2012


A child who is in kinship foster care though the DCF system, or his parents or foster parents, may qualify for respite benefits, case-manage- ment services, rehabilitation services, assessment services, adoption subsidies, higher financial al- lowances, educational surrogate services, child- care services, legal services, foster parent educa- tion, and transportation services that might not be available to the children, parents, or guardians


through a private guardianship. 10


According to 2010 U.S. Census data, there


were 6,836 children in Vermont under the age of eighteen living in homes where the household- ers are grandparents or other relatives. Of these children, 987 are living with grandparents with no parents in the home (this does not include those children living with aunts and uncles and other relatives). The figure of 6,836 children in relative- headed households in 2010 is an increase from 5,033 children living in such households as mea-


sured in the 2000 U.S. Census. 11


created in the family division. 12


Currently, “permanent guardianships” are only Lassiter v. Dept. of Social Services of Durham,


452 U.S. 18, 101 S.Ct. 2153 (1981). The Lassiter case was not unanimous and many states like Ver- mont have enacted statutory rights to appointed counsel in child protection cases where termina- tion is a possible outcome. The rule of Lassiter remains valid however: that due process requires each court to balance the personal and state in- terests and then gauge what level of procedur- al protections are due. This should be done on a case-by-case basis. See also In re G.F., G.F, & J.F., 2007 Vt. 11, 923 A.2d 578 (2007). Although not cited by Ms. Zalenski, a New York surrogate court determined that the creation of a legal guard- ianship was effectively a termination of parental rights and, thus, justified court appointed coun- sel. Matter of Guardianship of Daley, 123 Misc.2d 139, 473 N.Y.S.2d 114 (Sur. Ct. 1984). The case stands outside the mainstream and, if anything, can only be seen as an application of the case-by-


case approach urged by the court in Lassiter. 13


2011 VT 30.


14 15


99 Vt. 453, 134 A. 606 (1926). 173 Vt. 285, 796 A.2d 1102 (2002).


www.vtbar.org


Custodial Kinship Guardianships for Minors


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