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Title 33: Human Services
Chapter 052: Delinquency Proceedings
- Subchapter 001: Commencement of Proceedings.
[Effective until July 1, 2024.]
§ 5201. Commencement of delinquency proceedings
(a) Proceedings under this chapter shall be commenced by:
(1) transfer to the court of a proceeding from another court as provided in section 5203 of this title; or
(2) the filing of a delinquency petition by a State’s Attorney.
(b) If the proceeding is commenced by transfer from another court, no petition need be filed; however, the State’s Attorney shall provide to the court the name and address of the child’s custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known.
(c)(1) Any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining 14 years of age, but not 22 years of age, shall originate in the Criminal Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter and chapter 52A of this title, unless the State’s Attorney files the charge directly as a youthful offender petition in the Family Division.
(2)(A) Any proceeding concerning a child who is alleged to have committed one of the following acts after attaining 14 years of age, but not 22 years of age, shall originate in the Criminal Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter and chapter 52A of this title, unless the State’s Attorney files the charge directly as a youthful offender petition in the Family Division:
(i) a violation of a condition of release as defined in 13 V.S.A. § 7559 imposed by the Criminal Division for any of the offenses listed in subsection 5204(a) of this title; or
(ii) a violation of a condition of release as defined in 13 V.S.A. § 7559 imposed by the Criminal Division for an offense that was transferred from the Family Division pursuant to section 5204 of this title.
(B) This subdivision (2) shall not apply to a proceeding that is the subject of a final order accepting the case for youthful offender treatment pursuant to subsection 5281(d) of this title.
(d) Any proceeding concerning a child who is alleged to have committed any offense other than those specified in subsection 5204(a) of this title before attaining 19 years of age shall originate in the Family Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter.
(e) [Repealed.]
(f) If the State requests that custody of the child be transferred to the Department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.
(g) A petition may be withdrawn by the State’s Attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 159 (Adj. Sess.), § 2; 2015, No. 153 (Adj. Sess.), § 9, eff. Jan. 1, 2017; 2017, No. 201 (Adj. Sess.), § 13, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 17, eff. July 1, 2024; 2019, No. 45, § 3, eff. May 30, 2019; 2023, No. 23, § 2, eff. May 30, 2023.)
[Effective July 1, 2024.]
§ 5201. Commencement of delinquency proceedings
(a) Proceedings under this chapter shall be commenced by:
(1) transfer to the court of a proceeding from another court as provided in section 5203 of this title; or
(2) the filing of a delinquency petition by a State’s Attorney.
(b) If the proceeding is commenced by transfer from another court, no petition need be filed; however, the State’s Attorney shall provide to the court the name and address of the child’s custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known.
(c)(1) Any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining 14 years of age, but not 22 years of age, shall originate in the Criminal Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter and chapter 52A of this title, unless the State’s Attorney files the charge directly as a youthful offender petition in the Family Division.
(2)(A) Any proceeding concerning a child who is alleged to have committed one of the following acts after attaining 14 years of age, but not 22 years of age, shall originate in the Criminal Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter and chapter 52A of this title, unless the State’s Attorney files the charge directly as a youthful offender petition in the Family Division:
(i) a violation of a condition of release as defined in 13 V.S.A. § 7559 imposed by the Criminal Division for any of the offenses listed in subsection 5204(a) of this title; or
(ii) a violation of a condition of release as defined in 13 V.S.A. § 7559 imposed by the Criminal Division for an offense that was transferred from the Family Division pursuant to section 5204 of this title.
(B) This subdivision (2) shall not apply to a proceeding that is the subject of a final order accepting the case for youthful offender treatment pursuant to subsection 5281(d) of this title.
(d) Any proceeding concerning a child who is alleged to have committed any offense other than those specified in subsection 5204(a) of this title before attaining 20 years of age shall originate in the Family Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter.
(e) [Repealed.]
(f) If the State requests that custody of the child be transferred to the Department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.
(g) A petition may be withdrawn by the State’s Attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian; the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 159 (Adj. Sess.), § 2; 2015, No. 153 (Adj. Sess.), § 9, eff. Jan. 1, 2017; 2017, No. 201 (Adj. Sess.), § 13, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 17, eff. July 1, 2024; 2019, No. 45, § 3, eff. May 30, 2019; 2023, No. 23, § 2, eff. May 30, 2023.)
§ 5202. Order of adjudication; noncriminal
(a)(1) An order of the Family Division of the Superior Court in proceedings under this chapter shall not:
(A) be deemed a conviction of crime;
(B) impose any civil disabilities sanctions ordinarily resulting from a conviction; or
(C) operate to disqualify the child in any civil service application or appointment.
(2) Notwithstanding subdivision (1) of this subsection, an order of delinquency in proceedings concerning a child who is alleged to have committed a violation of those sections specified in 23 V.S.A. § 801(a)(1) shall be an event in addition to those specified therein, enabling the Commissioner of Motor Vehicles to require proof of financial responsibility under 23 V.S.A. chapter 11.
(b) The disposition of a child and evidence given in a hearing in a juvenile proceeding shall not be admissible as evidence against the child in any case or proceeding in any other court except after a subsequent conviction of a felony in proceedings to determine the sentence. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2017, No. 201 (Adj. Sess.), § 14, eff. July 1, 2020.)
§ 5203. Transfer from other courts
[Subsection (a) effective until July 1, 2024; see also subsection (a) effective July 1, 2024 set out below.]
(a) If it appears to a Criminal Division of the Superior Court that the defendant was under 19 years of age at the time the offense charged was alleged to have been committed and the offense charged is an offense not specified in subsection 5204(a) of this title, that court shall forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.
[Subsection (a) effective July 1, 2024; see also subsection (a) effective until July 1, 2024 set out above.]
(a) If it appears to a Criminal Division of the Superior Court that the defendant was under 20 years of age at the time the offense charged was alleged to have been committed and the offense charged is an offense not specified in subsection 5204(a) of this title, that court shall forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.
(b) If it appears to a Criminal Division of the Superior Court that the defendant had attained 14 years of age but not 18 years of age at the time an offense specified in subsection 5204(a) of this title was alleged to have been committed, that court may forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.
[Subsection (c) effective until July 1, 2024; see also subsection (c) effective July 1, 2024 set out below.]
(c) If it appears to the State’s Attorney that the defendant was under 19 years of age at the time the felony offense charged was alleged to have been committed and the felony charged is not an offense specified in subsection 5204(a) of this title, the State’s Attorney shall file charges in the Family Division of the Superior Court, pursuant to section 5201 of this title. The Family Division may transfer the proceeding to the Criminal Division pursuant to section 5204 of this title.
[Subsection (c) effective July 1, 2024; see also subsection (c) effective until July 1, 2024 set out above.]
(c) If it appears to the State’s Attorney that the defendant was under 20 years of age at the time the felony offense charged was alleged to have been committed and the felony charged is not an offense specified in subsection 5204(a) of this title, the State’s Attorney shall file charges in the Family Division of the Superior Court, pursuant to section 5201 of this title. The Family Division may transfer the proceeding to the Criminal Division pursuant to section 5204 of this title.
(d) A transfer under this section shall include a transfer and delivery of a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. Upon any such transfer, that court shall order that the defendant be taken forthwith to a place of detention designated by the Family Division of the Superior Court or to that court itself, or shall release the child to the custody of his or her parent or guardian or other person legally responsible for the child, to be brought before the Family Division of the Superior Court at a time designated by that court. The Family Division of the Superior Court shall then proceed as provided in this chapter as if a petition alleging delinquency had been filed with the court under section 5223 of this title on the effective date of such transfer.
(e) Motions to transfer a case to the Family Division of the Superior Court for youthful offender treatment shall be made under section 5281 of this title. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), §§ 226, 238; 2011, No. 159 (Adj. Sess.), § 3; 2015, No. 153 (Adj. Sess.), § 10, eff. Jan. 1, 2017; 2017, No. 201 (Adj. Sess.), § 7, eff. May 30, 2018; 2017, No. 201 (Adj. Sess.), § 15, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 18, eff. July 1, 2024.)
[Effective until July 1, 2024.]
§ 5204. Transfer from Family Division of the Superior Court
(a) After a petition has been filed alleging delinquency, upon motion of the State’s Attorney and after hearing, the Family Division of the Superior Court may transfer jurisdiction of the proceeding to the Criminal Division of the Superior Court if the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred and the delinquent act set forth in the petition is a felony not specified in subdivisions (1)–(12) of this subsection or if the child had attained 12 years of age but not 14 years of age at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:
(1) arson causing death as defined in 13 V.S.A. § 501 or an attempt to commit that offense;
(2) assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b) or an attempt to commit that offense;
(3) assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c) or an attempt to commit that offense;
(4) aggravated assault as defined in 13 V.S.A. § 1024 or an attempt to commit that offense;
(5) murder as defined in 13 V.S.A. § 2301 and aggravated murder as defined in 13 V.S.A. § 2311 or an attempt to commit either of those offenses;
(6) manslaughter as defined in 13 V.S.A. § 2304 or an attempt to commit that offense;
(7) kidnapping as defined in 13 V.S.A. § 2405 or an attempt to commit that offense;
(8) unlawful restraint as defined in 13 V.S.A. § 2406 or 2407 or an attempt to commit that offense;
(9) maiming as defined in 13 V.S.A. § 2701 or an attempt to commit that offense;
(10) sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2) or an attempt to commit that offense;
(11) aggravated sexual assault as defined in 13 V.S.A. § 3253 and aggravated sexual assault of a child as defined in 13 V.S.A. § 3253a or an attempt to commit either of those offenses; or
(12) burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c) or an attempt to commit that offense.
(b)(1) The State’s Attorney of the county where the juvenile petition is pending may move in the Family Division of the Superior Court for an order transferring jurisdiction under subsection (a) of this section at any time prior to adjudication on the merits. The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(2)(A)(i) The Family Division of the Superior Court shall hold a hearing under subsection (c) of this section to determine whether jurisdiction should be transferred to the Criminal Division under subsection (a) of this section if the delinquent act set forth in the petition is:
(I) a felony violation of 18 V.S.A. chapter 84 for selling or trafficking a regulated drug;
(II) human trafficking or aggravated human trafficking in violation of 13 V.S.A. § 2652 or 2653;
(III) defacing a firearm’s serial number in violation of 13 V.S.A. § 4024; or
(IV) straw purchasing of firearm in violation of 13 V.S.A. § 4025; and
(ii) the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred.
(B) A transfer hearing required by this subdivision (2) shall occur without delay and as soon as practicable, and the State shall have the burden of proof. The court decision to hold the transfer hearing shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(c) Upon the filing of a motion to transfer jurisdiction under subdivision (b)(1) of this section, or in cases where a hearing is required under subdivision (b)(2) of this section, the Family Division of the Superior Court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:
(1) there is probable cause to believe that the child committed the charged offense; and
(2) public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to the Family Division of the Superior Court and delinquent children.
(d) In making its determination as required under subsection (c) of this section, the court may consider, among other matters:
(1) the maturity of the child as determined by consideration of the child’s age, home, and environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
(2) the extent and nature of the child’s prior record of delinquency;
(3) the nature of past treatment efforts and the nature of the child’s response to them, including the child’s mental health treatment and substance abuse treatment and needs;
(4) the nature and circumstances of the alleged offense, including whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(5) the nature of any personal injuries resulting from or intended to be caused by the alleged act;
(6) the prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings;
(7) whether the protection of the community would be better served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court;
(8) the youth’s residential housing status;
(9) the youth’s employment and educational situation;
(10) whether the youth has complied with conditions of release;
(11) the youth’s criminal record and whether the youth has engaged in subsequent criminal or delinquent behavior since the original charge;
(12) whether the youth has connections to the community; and
(13) the youth’s history of violence and history of illegal or violent conduct involving firearms.
(e) A transfer under this section shall terminate the jurisdiction of the Family Division of the Superior Court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.
(f)(1) The Family Division, following completion of the transfer hearing, shall make findings and, if the court orders transfer of jurisdiction from the Family Division, shall state the reasons for that order. If the Family Division orders transfer of jurisdiction, the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(2) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to a transfer of jurisdiction from the Family Division at any time after a motion to transfer is made pursuant to subsection (b) of this section. The court shall not be required to make findings if the parties stipulate to a transfer pursuant to this subdivision. Upon acceptance of the stipulation to transfer jurisdiction, the court shall transfer the proceedings to the Criminal Division and the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(3) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to convert the juvenile proceeding to a youthful offender proceeding under chapter 52A of this title. If the parties stipulate to convert the proceeding pursuant to this subdivision, the court may proceed immediately to a youthful offender consideration hearing under section 5283 of this title. The Court shall request that the Department complete a youthful offender consideration report under section 5282 of this title before accepting a case for youthful offender treatment pursuant to this subdivision.
(g) The order granting or denying transfer of jurisdiction shall constitute a final order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.
(h) If a person who has not attained 16 years of age at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(i) If a juvenile 16 years of age or older has been prosecuted as an adult for an offense not listed in subsection (a) of this section and is not convicted of a felony, but is convicted of a lesser included misdemeanor, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of a crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(j) The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 159 (Adj. Sess.), § 4; 2015, No. 153 (Adj. Sess.), § 11, eff. January 1, 2017; 2015, No. 153 (Adj. Sess.), § 12; 2017, No. 201 (Adj. Sess.), § 16, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 19, eff. July 1, 2024; 2021, No. 160 (Adj. Sess.), § 14, eff. June 1, 2022; 2023, No. 23, § 1, eff. May 30, 2023.)
[Effective July 1, 2024.]
§ 5204. Transfer from Family Division of the Superior Court
(a) After a petition has been filed alleging delinquency, upon motion of the State’s Attorney and after hearing, the Family Division of the Superior Court may transfer jurisdiction of the proceeding to the Criminal Division of the Superior Court if the child had attained 16 years of age but not 20 years of age at the time the act was alleged to have occurred and the delinquent act set forth in the petition is a felony not specified in subdivisions (1)–(12) of this subsection or if the child had attained 12 years of age but not 14 years of age at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:
(1) arson causing death as defined in 13 V.S.A. § 501 or an attempt to commit that offense;
(2) assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b) or an attempt to commit that offense;
(3) assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c) or an attempt to commit that offense;
(4) aggravated assault as defined in 13 V.S.A. § 1024 or an attempt to commit that offense;
(5) murder as defined in 13 V.S.A. § 2301 and aggravated murder as defined in 13 V.S.A. § 2311 or an attempt to commit either of those offenses;
(6) manslaughter as defined in 13 V.S.A. § 2304 or an attempt to commit that offense;
(7) kidnapping as defined in 13 V.S.A. § 2405 or an attempt to commit that offense;
(8) unlawful restraint as defined in 13 V.S.A. § 2406 or 2407 or an attempt to commit that offense;
(9) maiming as defined in 13 V.S.A. § 2701 or an attempt to commit that offense;
(10) sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2) or an attempt to commit that offense;
(11) aggravated sexual assault as defined in 13 V.S.A. § 3253 and aggravated sexual assault of a child as defined in 13 V.S.A. § 3253a or an attempt to commit either of those offenses; or
(12) burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c) or an attempt to commit that offense.
(b)(1) The State’s Attorney of the county where the juvenile petition is pending may move in the Family Division of the Superior Court for an order transferring jurisdiction under subsection (a) of this section at any time prior to adjudication on the merits. The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(2)(A)(i) The Family Division of the Superior Court shall hold a hearing under subsection (c) of this section to determine whether jurisdiction should be transferred to the Criminal Division under subsection (a) of this section if the delinquent act set forth in the petition is:
(I) a felony violation of 18 V.S.A. chapter 84 for selling or trafficking a regulated drug;
(II) human trafficking or aggravated human trafficking in violation of 13 V.S.A. § 2652 or 2653;
(III) defacing a firearm’s serial number in violation of 13 V.S.A. § 4024; or
(IV) straw purchasing of firearm in violation of 13 V.S.A. § 4025; and
(ii) the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred.
(B) A transfer hearing required by this subdivision (2) shall occur without delay and as soon as practicable, and the State shall have the burden of proof. The court decision to hold the transfer hearing shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(c) Upon the filing of a motion to transfer jurisdiction under subdivision (b)(1) of this section, or in cases where a hearing is required under subdivision (b)(2) of this section, the Family Division of the Superior Court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:
(1) there is probable cause to believe that the child committed the charged offense; and
(2) public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to the Family Division of the Superior Court and delinquent children.
(d) In making its determination as required under subsection (c) of this section, the court may consider, among other matters:
(1) the maturity of the child as determined by consideration of the child’s age, home, and environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
(2) the extent and nature of the child’s prior record of delinquency;
(3) the nature of past treatment efforts and the nature of the child’s response to them, including the child’s mental health treatment and substance abuse treatment and needs;
(4) the nature and circumstances of the alleged offense, including whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(5) the nature of any personal injuries resulting from or intended to be caused by the alleged act;
(6) the prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings;
(7) whether the protection of the community would be better served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court;
(8) the youth’s residential housing status;
(9) the youth’s employment and educational situation;
(10) whether the youth has complied with conditions of release;
(11) the youth’s criminal record and whether the youth has engaged in subsequent criminal or delinquent behavior since the original charge;
(12) whether the youth has connections to the community; and
(13) the youth’s history of violence and history of illegal or violent conduct involving firearms.
(e) A transfer under this section shall terminate the jurisdiction of the Family Division of the Superior Court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.
(f)(1) The Family Division, following completion of the transfer hearing, shall make findings and, if the court orders transfer of jurisdiction from the Family Division, shall state the reasons for that order. If the Family Division orders transfer of jurisdiction, the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(2) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to a transfer of jurisdiction from the Family Division at any time after a motion to transfer is made pursuant to subsection (b) of this section. The court shall not be required to make findings if the parties stipulate to a transfer pursuant to this subdivision. Upon acceptance of the stipulation to transfer jurisdiction, the court shall transfer the proceedings to the Criminal Division and the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(3) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to convert the juvenile proceeding to a youthful offender proceeding under chapter 52A of this title. If the parties stipulate to convert the proceeding pursuant to this subdivision, the court may proceed immediately to a youthful offender consideration hearing under section 5283 of this title. The Court shall request that the Department complete a youthful offender consideration report under section 5282 of this title before accepting a case for youthful offender treatment pursuant to this subdivision.
(g) The order granting or denying transfer of jurisdiction shall constitute a final order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.
(h) If a person who has not attained 16 years of age at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(i) If a juvenile 16 years of age or older has been prosecuted as an adult for an offense not listed in subsection (a) of this section and is not convicted of a felony, but is convicted of a lesser included misdemeanor, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of a crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(j) The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 159 (Adj. Sess.), § 4; 2015, No. 153 (Adj. Sess.), § 11, eff. January 1, 2017; 2015, No. 153 (Adj. Sess.), § 12; 2017, No. 201 (Adj. Sess.), § 16, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 19, eff. July 1, 2024; 2021, No. 160 (Adj. Sess.), § 14, eff. June 1, 2022; 2023, No. 23, § 1, eff. May 30, 2023.)
§ 5204a. Jurisdiction over adult defendant for crime committed when defendant was under 19 years of age
(a) A proceeding may be commenced in the Family Division against a defendant who has attained 18 years of age if:
(1) the petition alleges that the defendant:
(A) before attaining 19 years of age, violated a crime listed in subsection 5204(a) of this title;
(B) after attaining 14 years of age but before attaining 19 years of age, committed an offense listed in 13 V.S.A. § 5301(7) but not listed in subsection 5204(a) of this title; or
(C) after attaining 17 years of age but before attaining 19 years of age, committed any offense not listed in 13 V.S.A. § 5301(7) or subsection 5204(a) of this title, provided the petition is filed prior to the defendant’s 19th birthday;
(2) a juvenile petition was never filed based upon the alleged conduct; and
(3) the statute of limitations has not tolled on the crime that the defendant is alleged to have committed.
(b)(1) The Family Division shall, except as provided in subdivision (2) of this subsection, transfer a petition filed pursuant to subdivision (a)(1)(A) of this section to the Criminal Division if the Family Division finds that:
(A) there is probable cause to believe that while the defendant was less than 19 years of age he or she committed an act listed in subsection 5204(a) of this title;
(B) there was good cause for not filing a delinquency petition in the Family Division when the defendant was less than 19 years of age;
(C) there has not been an unreasonable delay in filing the petition; and
(D) transfer would be in the interest of justice and public safety.
(2)(A) If a petition has been filed pursuant to subdivision (a)(1)(A) of this section, the Family Division may order that the defendant be treated as a youthful offender consistent with the applicable provisions of chapter 52A of this title if the defendant is under 22 years of age and the Family Division:
(i) makes the findings required by subdivisions (1)(A), (B), and (C) of this subsection (b);
(ii) finds that the youth is amenable to treatment or rehabilitation as a youthful offender; and
(iii) finds that there are sufficient services in the Family Division system and the Department for Children and Families or the Department of Corrections to meet the youth’s treatment and rehabilitation needs.
(B) If the Family Division orders that the defendant be treated as a youthful offender, the court shall approve a disposition case plan and impose conditions of probation on the defendant.
(C) If the Family Division finds after hearing that the defendant has violated the terms of his or her probation, the Family Division may:
(i) maintain the defendant’s status as a youthful offender, with modified conditions of probation if the court deems it appropriate; or
(ii) revoke the defendant’s youthful offender status and transfer the petition to the Criminal Division pursuant to subdivision (1) of this subsection (b).
(3) The Family Division shall in all respects treat a petition filed pursuant to subdivision (a)(1)(B) of this section in the same manner as a petition filed pursuant to section 5201 of this title, except that the Family Division’s jurisdiction shall end on or before the defendant’s 22nd birthday, if the Family Division:
(A) finds that there is probable cause to believe that, after attaining 14 years of age but before attaining 19 years of age, the defendant committed an offense listed in 13 V.S.A. § 5301(7) but not listed in subsection 5204(a) of this title; and
(B) makes the findings required by subdivisions (b)(1)(B) and (C) of this section.
(4) In making the determination required by subdivision (1)(D) of this subsection, the court may consider, among other matters:
(A) the maturity of the defendant as determined by consideration of his or her age; home; environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
(B) the extent and nature of the defendant’s prior criminal record and record of delinquency;
(C) the nature of past treatment efforts and the nature of the defendant’s response to them;
(D) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(E) the nature of any personal injuries resulting from or intended to be caused by the alleged act;
(F) whether the protection of the community would be best served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court.
(c) If the Family Division does not transfer a petition filed pursuant to subdivision (a)(1)(A) of this section to the Criminal Division or order that the defendant be treated as a youthful offender pursuant to subsection (b) of this section, the petition shall be dismissed.
(d)(1) The Family Division shall treat a petition filed pursuant to subdivision (a)(1)(C) of this section in all respects in the same manner as a petition filed pursuant to section 5201 of this title if the court:
(A) finds that there is probable cause to believe that, after attaining 17 years of age but before attaining 18 years of age, the defendant committed an offense not listed in 13 V.S.A. § 5301(7) or subsection 5204(a) of this title; and
(B) makes the findings required by subdivisions (b)(1)(B) and (C) of this section.
(2) The Family Division’s jurisdiction over cases filed pursuant to subdivision (a)(1)(C) of this section shall end on or before the defendant’s 20th birthday. (Added 2011, No. 16, § 2, eff. May 9, 2011; amended 2019, No. 77, § 23, eff. June 19, 2019; 2019, No. 124 (Adj. Sess.), § 5; 2021, No. 65, § 16, eff. June 7, 2021.)
§ 5205. Fingerprints; photographs
(a) Fingerprint files of a child under the jurisdiction of the court shall be kept separate from those of other persons under special security measures. Inspection of such files shall be limited to law enforcement officers only on a need-to-know basis unless otherwise authorized by the court in individual cases.
(b) Copies of fingerprints shall be maintained on a local basis only and not sent to central State or federal depositories except in national security cases.
(c) Fingerprints of persons under the jurisdiction of the court shall be removed and destroyed when:
(1) the petition alleging delinquency with respect to which such fingerprints were taken does not result in an adjudication of delinquency; or
(2) jurisdiction of the court is terminated, provided that there has been no record of a criminal offense by the child after reaching 16 years of age.
(d) If latent prints are found at the scene of an offense and there is reason to believe that a particular child was involved, the child may be fingerprinted for purposes of immediate comparison, and, if the result is negative, the fingerprint card shall be immediately destroyed.
(e) No photograph shall be taken of any child when taken into custody without the consent of the judge unless the case is transferred for criminal proceeding.
(f) A person who violates this section shall be imprisoned not more than six months or fined not more than $500.00, or both. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 23, § 15.)
[Section 5206 effective until July 1, 2024; see also section 5206 effective July 1, 2024 set out below.]
§ 5206. Citation of 16- to 18-year-olds
(a)(1) If a child was over 16 years of age and under 19 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court.
(2) If, after the child is cited to the Family Division, the State’s Attorney chooses to file the charge in the Criminal Division of the Superior Court, the State’s Attorney shall state in the information the reason why filing in the Criminal Division is in the interest of justice.
(b) Offenses for which a law enforcement officer is not required to cite a child to the Family Division of the Superior Court shall include:
(1) 23 V.S.A. §§ 674 (driving while license suspended or revoked), 1128 (accidents — duty to stop), and 1133 (eluding a police officer);
(2) fish and wildlife offenses that are not minor violations as defined by 10 V.S.A. § 4572; and
(3) an offense listed in subsection 5204(a) of this title. (Added 2015, No. 153 (Adj. Sess.), § 17; amended 2019, No. 124 (Adj. Sess.), § 6.)
[Section 5206 effective July 1, 2024; see also section 5206 effective until July 1, 2024 set out above.]
§ 5206. Citation of 16- to 19-year-olds
(a)(1) If a child was over 16 years of age and under 20 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court.
(2) If, after the child is cited to the Family Division, the State’s Attorney chooses to file the charge in the Criminal Division of the Superior Court, the State’s Attorney shall state in the information the reason why filing in the Criminal Division is in the interest of justice.
(b) Offenses for which a law enforcement officer is not required to cite a child to the Family Division of the Superior Court shall include:
(1) 23 V.S.A. §§ 674 (driving while license suspended or revoked), 1128 (accidents — duty to stop), and 1133 (eluding a police officer);
(2) fish and wildlife offenses that are not minor violations as defined by 10 V.S.A. § 4572; and
(3) an offense listed in subsection 5204(a) of this title. (Added 2015, No. 153 (Adj. Sess.), § 17; amended 2019, No. 124 (Adj. Sess.), § 6; 2019, No. 124 (Adj. Sess.), § 7, eff. July 1, 2024.)
- Subchapter 002: Petition, Merits, and Disposition
§ 5221. Citation and notice to appear at preliminary hearing
(a) Citation. If an officer has probable cause to believe that a child has committed or is committing a delinquent act and the circumstances do not warrant taking the child into custody pursuant to subchapter 3 of this chapter, the officer may issue a citation to appear before a judicial officer in lieu of arrest.
(b) Appearance in court. A child who receives a citation described in this section shall appear at the court designated in the citation at the time and date specified in the citation unless otherwise notified by the court.
(c) Notice to parent. The officer who issues the citation shall also issue or cause to be issued a notice to the child’s custodial parent, guardian, or custodian. The notice shall indicate the date, time, and place of the preliminary hearing and shall direct the responsible adult to appear at the hearing with the child.
(d) Form. The citation to appear shall be dated and signed by the issuing officer and shall direct the child to appear before a judicial officer at a stated time and place. The citation shall state the name of the child to whom it is addressed, the delinquent act that the child is alleged to have committed, and a notice that the child is entitled to be represented by an attorney at the hearing and that an attorney will be appointed for the child if the parent or guardian is indigent and cannot afford an attorney.
(e) Filing of citation. The issuing officer shall sign the citation and file the citation and an affidavit as to probable cause with the State’s Attorney. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5222. Petition; contents
(a) The petition shall be supported by an affidavit as to probable cause. The petition shall contain the following:
(1) A concise statement of the facts that support the conclusion that the child has committed a delinquent act, together with a statement that it is in the best interests of the child that the proceedings be brought.
(2) The name, date of birth, telephone number, and residence address, if known, of the child and the custodial and noncustodial parents or the guardian or custodian of the child, if other than parent. If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.
(b) If a temporary care order has been issued or the State is requesting that custody be transferred to the Commissioner, the petition shall contain jurisdictional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A. chapter 20.
(c) A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision, and a child who has been adjudged a delinquent child as a result of a delinquency petition may not be subsequently adjudged a child in need of care or supervision, unless a separate petition alleging that the child is in need of care or supervision is filed. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5223. Filing of petition
(a) When notice to the child is provided by citation, the State’s Attorney shall file the petition and supporting affidavit at least 10 business days prior to the date for the preliminary hearing specified in the citation.
(b) The court shall send or deliver a copy of the petition and affidavit to the Commissioner after a finding of probable cause. A copy of the petition and affidavit shall be made available at the State’s Attorney’s office to all persons required to receive notice, including the noncustodial parent, as soon as possible after the petition is filed and at least five business days prior to the date set for the preliminary hearing. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 25.)
§ 5224. Failure to appear at preliminary hearing
If a child or custodial parent, guardian, or custodian fails to appear at the preliminary hearing as directed by a citation, the court may issue a summons to appear, an order to have the child brought to court, or a warrant as provided in section 5108 of this title. The summons, order, or warrant shall be served by the law enforcement agency that cited or took the child into custody, or another law enforcement agency acting on its behalf. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 58, § E.204.3, eff. June 11, 2015.)
§ 5225. Preliminary hearing; risk assessment
(a) Preliminary hearing. A preliminary hearing shall be held at the time and date specified on the citation or as otherwise ordered by the court. If a child is taken into custody prior to the preliminary hearing, the preliminary hearing shall be at the time of the temporary care hearing. Counsel for the child shall be assigned prior to the preliminary hearing.
(b) Risk and needs screening.
(1) Prior to the preliminary hearing, the child shall be afforded an opportunity to undergo a risk and needs screening, which shall be conducted by the Department or by a community provider that has contracted with the Department to provide risk and need screenings for children alleged to have committed delinquent acts.
(2) If the child participates in such a screening, the Department or the community provider shall report the risk level result of the screening, the number and source of the collateral contacts made, and the recommendation for charging or other alternatives to the State’s Attorney. The State’s Attorney shall consider the results of the risk and needs screening in determining whether to file a charge. In lieu of filing a charge, the State’s Attorney may refer a child directly to a youth-appropriate community-based provider that has been approved by the Department, which may include a community justice center or a balanced and restorative justice program. Referral to a community-based provider pursuant to this subsection shall not require the State’s Attorney to file a charge. If the community-based provider does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child’s case shall return to the State’s Attorney for charging consideration.
(3) Information related to the present alleged offense directly or indirectly derived from the risk and needs screening or from other conversations with the Department or community-based provider shall not be used against the youth in the youth’s case for any purpose, including impeachment or cross-examination, provided that the fact of the youth’s participation in risk and needs screening may be used in subsequent proceedings.
(4) If a charge is brought in the Family Division, the risk level result shall be provided to the child’s attorney.
(c) Referral to diversion. Based on the results of the risk and needs screening, if a child presents a low to moderate risk to reoffend, the State’s Attorney shall refer the child directly to court diversion unless the State’s Attorney states on the record why a referral to court diversion would not serve the ends of justice. If the court diversion program does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child’s case shall return to the State’s Attorney for charging consideration.
(d) Guardian ad litem. At the preliminary hearing, the court shall appoint a guardian ad litem for the child. The guardian ad litem may be the child’s parent, guardian, or custodian. On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent, guardian, or custodian.
(e) Admission; denial. At the preliminary hearing, a denial shall be entered to the allegations of the petition, unless the juvenile, after adequate consultation with the guardian ad litem and counsel, enters an admission. If the juvenile enters an admission, the disposition case plan required by section 5230 of this title may be waived and the court may proceed directly to disposition, provided that the juvenile, the custodial parent, the State’s Attorney, the guardian ad litem, and the Department agree.
(f) Conditions. The court may order the child to abide by conditions of release pending a merits or disposition hearing. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 159 (Adj. Sess.), § 6; 2015, No. 153 (Adj. Sess.), § 14; 2017, No. 201 (Adj. Sess.), § 6; 2023, No. 46, § 18, eff. June 5, 2023.)
§ 5226. Repealed. 2015, No. 153 (Adj. Sess.), § 36.
§ 5227. Timelines for pretrial and merits hearing
(a) Pre-trial hearing. At the preliminary hearing, the court shall set a date for a pretrial hearing on the petition. The pretrial hearing shall be held within 15 days of the preliminary hearing. In the event there is no admission or dismissal at the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.
(b) Merits hearing. Except for good cause shown, a merits hearing shall be held and merits adjudicated no later than 60 days from the date of the preliminary hearing. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5228. Constitutional protections for a child in delinquency proceedings
A child charged with a delinquent act need not be a witness against, nor otherwise incriminate, himself or herself. Any extrajudicial statement, if constitutionally inadmissible in a criminal proceeding, shall not be used against the child. Evidence illegally seized or obtained shall not be used over objection to establish the charge against the child. A confession out of court is insufficient to support an adjudication of delinquency unless corroborated in whole or in part by other substantial evidence. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5229. Merits adjudication
(a) The parties at a merits hearing in a delinquency proceeding shall be limited to the State’s Attorney and the child who is the subject of the petition. A merits adjudication hearing shall not proceed forward unless the child who is the subject of the delinquency petition is present in court.
(b) The State shall have the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act.
(c) If the child who is the subject of the delinquency petition enters an admission to the petition, the court shall not accept the admission without first addressing the child personally in open court and determining that:
(1) the plea is voluntary;
(2) the child understands the nature of the delinquent act charged, the right to contest the charge, and the rights that will be waived if the admission is accepted by the court; and
(3) there is a factual basis for the delinquent act charged in the petition.
(d) A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence.
(e) If the merits are contested, the court, after hearing the evidence, shall make its findings on the record.
(f) If the court finds that the allegations made in the petition have not been established beyond a reasonable doubt, the court shall dismiss the petition and vacate any orders transferring custody to the State or other person or any conditional custody orders.
(g) If, based on the child’s admission or the evidence presented, the court finds beyond a reasonable doubt that the child has committed a delinquent act, the court shall order the Department to prepare a disposition case plan not later than seven business days before the disposition hearing. In no event shall a disposition hearing be held later than 35 days after a finding that a child is delinquent.
(h) The court may proceed directly to disposition providing that the child, the custodial parent, the State’s Attorney, and the Department agree. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 26.)
§ 5230. Disposition case plan
(a) Filing of case plan. Following the finding by the court that a child is delinquent, the Department shall file a disposition case plan not later than seven business days before the scheduled disposition hearing. The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is delinquent.
(b) Content of case plan. A disposition case plan shall include, as appropriate:
(1) An assessment of the child’s medical, psychological, social, educational, and vocational needs.
(2) An assessment of the impact of the delinquent act on the victim and the community, including, whenever possible, a statement from the victim.
(3) A description of the child’s home, school, community, and current living situation.
(4) An assessment of the child’s and family’s strengths and risk factors.
(5) Proposed conditions of probation that address the identified risks and provide for, to the extent possible, repair of the harm to victims and the community. Proposed conditions may include a recommendation as to the term of probation.
(6) The plan of services shall describe the responsibilities of the child; the parent, guardian, or custodian; the Department; other family members; and treatment providers, including a description of the services required to achieve successful completion of the goals of probation and, if the child has been placed in the custody of the Department, the permanency goal.
(c) Case plan for child in custody. If a child is in the custody of the Commissioner at the time of disposition or if a transfer of custody is requested, the case plan shall include the following additional information:
(1) A permanency goal if the child is in custody. The long-term goal for a child found to be delinquent and placed in the custody of the Department is a safe and permanent home. A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal. The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement. In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.
(2) A recommendation with respect to custody for the child and a recommendation for parent-child contact if appropriate.
(3) A request for child support if the child has been placed in the custody of the Department or the Department recommends a transfer of custody.
(d) Psychosexual evaluation. For purposes of determining appropriate conditions of probation for a disposition case plan under this section, the court may order a psychosexual evaluation if clinically indicated for a child charged with:
(1) lewd and lascivious conduct in violation of 13 V.S.A. § 2601;
(2) lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602;
(3) sexual assault in violation of 13 V.S.A. § 3252;
(4) aggravated sexual assault in violation of 13 V.S.A. § 3253;
(5) aggravated sexual assault of a child in violation of 13 V.S.A. § 3253a;
(6) kidnapping with intent to commit sexual assault in violation of 13 V.S.A. § 2405(a)(1)(D); or
(7) an offense involving sexual exploitation of children in violation of 13 V.S.A. chapter 64. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 27; 2021, No. 160 (Adj. Sess.), § 16, eff. June 1, 2022.)
§ 5231. Disposition hearing
(a) Timeline. A disposition hearing shall be held no later than 35 days after a finding that a child is delinquent.
(b) Hearing procedure. If disposition is contested, all parties shall have the right to present evidence and examine witnesses. Hearsay may be admitted and may be relied on to the extent of its probative value. If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.
(c) Standard of proof. If the court terminates the parental rights of one or both parents, the standard of proof on the issue of such termination shall be clear and convincing evidence. On all other issues, the standard of proof shall be a preponderance of the evidence.
(d) Termination of parental rights. If the Commissioner or the attorney for the child seeks an order terminating parental rights of one or both parents and transfer of custody to the Commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.
(e) Further hearing. On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case. The court shall make an appropriate order for the temporary care of the child pending a final disposition order. The court shall give scheduling priority to cases in which the child has been removed from the home. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5232. Disposition order
(a) If a child is found to be a delinquent child, the court shall make such orders at disposition as may provide for:
(1) the child’s supervision, care, and rehabilitation;
(2) the protection of the community;
(3) accountability to victims and the community for offenses committed; and
(4) the development of competencies to enable the child to become a responsible and productive member of the community.
(b) In carrying out the purposes outlined in subsection (a) of this section, the court may:
(1) Place the child on probation subject to the supervision of the Commissioner, upon such conditions as the court may prescribe. The length of probation shall be as prescribed by the court or until further order of the court.
(2) Order custody of the child be given to the custodial parent, guardian, or custodian. For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and the community. Conditions may include protective supervision for up to six months following the disposition order unless further extended by court order. The court shall hold review hearings pursuant to section 5320 of this title to determine whether the conditions continue to be necessary.
(3) Transfer custody of the child to a noncustodial parent, relative, or person with a significant connection to the child. The court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and community, including protective supervision, for up to six months unless further extended by court order. The court shall hold review hearings pursuant to section 5320 of this title to determine whether the conditions continue to be necessary.
(4) Transfer custody of the child to the Commissioner.
(5) Terminate parental rights and transfer custody and guardianship to the Department without limitation as to adoption.
(6) Issue an order of permanent guardianship pursuant to 14 V.S.A. § 2664.
(7) Refer a child directly to a youth-appropriate community-based provider that has been approved by the Department, which may include a community justice center or a balanced and restorative justice program. Referral to a community-based provider pursuant to this subdivision shall not require the court to place the child on probation. If the community-based provider does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child shall return to the court for disposition.
(c) If the court orders the transfer of custody of the child pursuant to subdivisions (b)(4) and (5) of this section, the court shall establish a permanency goal for the child and adopt a case plan prepared by the Department designed to achieve the permanency goal. If the court determines that the plan proposed by the Department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the Department and order the Department to prepare and submit a revised plan for court approval. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 28, § 3, eff. May 21, 2009; 2011, No. 159 (Adj. Sess.), § 5; 2015, No. 170 (Adj. Sess.), § 8, eff. Sept. 1, 2016.)
§ 5233. Repealed. 2015, No. 153 (Adj. Sess.), § 36.
§ 5234. Rights of victims in delinquency proceedings involving a listed crime
(a) The victim in a delinquency proceeding involving a listed crime shall have the following rights:
(1) To be notified by the prosecutor’s office in a timely manner of the following:
(A) when a delinquency petition has been filed, the name of the child and any conditions of release initially ordered for the child or modified by the court, unless otherwise limited by court order;
(B) the victim’s rights as provided by law, information regarding how a case proceeds through a delinquency proceeding, the confidential nature of delinquency proceedings, and that it is unlawful to disclose confidential information concerning the proceedings to another person;
(C) when a predispositional or dispositional court proceeding is scheduled to take place and when a court proceeding of which the victim has been notified will not take place as scheduled; and
(D) whether delinquency has been found and disposition has occurred, and any conditions of release or conditions of probation and any restitution, unless otherwise limited by court order.
(2) To file with the court a written or recorded statement of the impact of the delinquent act on the victim and the need for restitution.
(3) To be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence; to attend the disposition hearing to present a victim impact statement and to express reasonably the victim’s views concerning the offense and the youth, including testimony in support of the victim’s claim for restitution pursuant to section 5235 of this title; to be notified as to the disposition, including probation; and to submit oral or written statements to the court at such other times as the court may allow. The court shall consider the victim’s statement when ordering disposition.
(4) To be notified by the agency having custody of the delinquent child before the child is released into the community from a secure or staff-secured residential facility. The name of the facility shall not be disclosed. An agency’s inability to give notification shall not preclude the release. However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable. Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.
(5) To have the court take the victim’s views into consideration in the court’s disposition order. If the victim is not present, the court shall consider whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into account when ordering disposition.
(6) [Repealed.]
(b) The prosecutor’s office shall keep the victim informed and consult with the victim through the delinquency proceedings. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 21; 2021, No. 160 (Adj. Sess.), § 10, eff. June 1, 2022.)
§ 5234a. Rights of victims in delinquency proceedings involving a nonlisted crime
(a) The victim in a delinquency proceeding involving an offense that is not a listed crime shall have the following rights:
(1) To be notified by the prosecutor’s office in a timely manner of the following:
(A) the victim’s rights as provided by law, information regarding how a delinquency proceeding is adjudicated, the confidential nature of juvenile proceedings, and that it is unlawful to disclose confidential information concerning the proceedings;
(B) when a delinquency petition is filed;
(C) the child’s name and the conditions of release ordered for the child or modified by the court unless otherwise limited by court order; and
(D) when a dispositional court proceeding is scheduled to take place and when a court proceeding of which the victim has been notified will not take place as scheduled.
(2) That delinquency has been found and disposition has occurred, any conditions of release or conditions of probation, and any restitution unless otherwise limited by court order.
(3) To file with the court a written or recorded statement of the impact of the delinquent act on the victim and any need for restitution.
(4) To attend the disposition hearing for the sole purpose of presenting to the court a victim impact statement, including testimony in support of the victim’s claim for restitution pursuant to section 5235 of this title. The victim shall not be personally present at any portion of the disposition hearing except to present a victim impact statement or to testify in support of the victim’s claim for restitution unless the court finds that the victim’s presence is necessary in the interest of justice.
(5) To be notified by the agency having custody of the child, if agreed to by the parties, before the child is released into the community from a secure or staff-secured residential facility.
(6) To have the court take the victim’s views into consideration in the court’s disposition order. If the victim is not present, the court shall consider whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into account when ordering disposition. The court shall order that the victim be notified as to the identity of the child upon disposition if the court finds that release of the child’s identity to the victim is in the best interests of both the child and the victim and serves the interests of justice.
(b) The prosecutor’s office shall keep the victim informed and consult with the victim through the delinquency proceedings. (Added 2015, No. 153 (Adj. Sess.), § 22; amended 2021, No. 160 (Adj. Sess.), § 11, eff. June 1, 2022.)
§ 5235. Juvenile restitution
(a) Restitution shall be considered in every case in which a victim of a delinquent act has suffered a material loss. For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.
(b) When ordered, restitution may include:
(1) return of property wrongfully taken from the victim;
(2) cash, credit card, or installment payments paid to the Restitution Unit; and
(3) payments in kind, if acceptable to the victim.
(c) In awarding restitution, the court shall make findings in accordance with subdivision 5262(b)(2) of this title.
(d) If restitution is ordered, the victim shall be entitled to payment from the Crime Victims’ Restitution Fund, pursuant to 13 V.S.A. § 5363. An order of restitution shall establish the amount of material loss incurred by the victim, which shall be the restitution judgment order. Every order of restitution shall include:
(1) the juvenile’s name and address;
(2) the name of the victim;
(3) the amount ordered; and
(4) any co-defendant names if applicable.
(e) In the event the juvenile is unable to pay the restitution judgment order at the time of disposition, the court shall fix the amount thereof, which shall not exceed an amount the juvenile can or will be able to pay, and establish a restitution payment schedule based upon the juvenile’s current and reasonably foreseeable future ability to pay, subject to modification under section 5264 of this title.
(f) The court shall transmit a copy of a restitution order to the Restitution Unit, which shall make payment to the victim in accordance with 13 V.S.A. § 5363.
(g) To the extent that the Victims’ Compensation Board has made payment to or on behalf of the victim in accordance with 13 V.S.A. chapter 167, restitution, if imposed, shall be paid to the Restitution Unit, which shall make payment to the Crime Victims’ Compensation Fund.
(h) When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.
(i) Any information concerning restitution payments made by a juvenile shall be available to the Vermont Restitution Unit for purposes of determining restitution obligations of adult and juvenile co-defendants.
(j) In accordance with 13 V.S.A. § 5363, the Restitution Unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008, and the order was first entered on or after July 1, 2004.
(k)(1) The Restitution Unit may bring an action to enforce a restitution order issued under this section in the Superior or Small Claims Court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in Superior or Small Claims Court in the same manner as a civil judgment. Superior and Small Claims Court filing fees shall be waived for an action under this subsection and for an action to renew a restitution judgment.
(2) An action under this subsection may be brought only after the offender reaches 18 years of age and shall not be subject to any limitations period.
(3) For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential. The sealing of a juvenile record shall not affect the authority of the Restitution Unit to enforce a restitution order in the same manner as a civil judgment under subdivision (1) of this subsection. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2021, No. 160 (Adj. Sess.), § 4, eff. June 1, 2022.)
- Subchapter 003: Children in Custody
§ 5251. Taking into custody
A child may be taken into custody by an officer:
(1) pursuant to the laws of arrest of this State;
(2) pursuant to an order of the court under the provisions of this chapter and chapters 51 and 53 of this title; or
(3) when the officer has reasonable grounds to believe that the child has committed a delinquent act, and that the child’s immediate welfare or the protection of the community, or both, require the child’s removal from the child’s current home. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5252. Request for emergency care order
(a) If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.
(b) If the officer determines that the child’s immediate welfare, the protection of the community, or both, require the child’s continued removal from the home, the officer shall:
(1) Take the child into custody pending either issuance of an emergency care order or direction from the State’s Attorney to release the child.
(2) Prepare an affidavit in support of a request for an emergency care order. The affidavit shall include the reasons for taking the child into custody and, if known, placements with which the child is familiar; the names, addresses, and telephone numbers of the child’s parents, guardians, or custodians; and the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child. The officer shall contact the Department, and, if the Department has knowledge of the reasons for the removal of the child, the Department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer.
(3) Provide the affidavit to the State’s Attorney.
(c) If the child is taken into custody during regular court hours, the State’s Attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s custodial parent, guardian, or custodian. If the child is taken into custody after regular court hours or on a weekend or holiday, the State’s Attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s custodial parent, guardian, or custodian. If an order is granted, the State’s Attorney shall file the supporting affidavit with the Family Division of the Superior Court on the next day that the court is open.
(d) If the judge denies a request for an emergency care order, the State’s Attorney shall direct the immediate return of the child to the child’s custodial parent, guardian, or custodian. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.)
§ 5253. Emergency care order; conditional custody order
(a) Transfer of temporary custody.
(1) The court may issue an emergency care order transferring temporary custody of the child to the Department pending a temporary care hearing if the court determines that:
(A) there is probable cause that the child has committed a delinquent act; and
(B) continued residence in the home is contrary to the child’s welfare because:
(i) the child cannot be controlled at home and is at risk of harm to self or others; or
(ii) continued residence in the home will not safeguard the well-being of the child and the safety of the community because of the serious and dangerous nature of the act the juvenile is alleged to have committed.
(2) The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with subsection 5252(b) of this title.
(b) Contents of emergency care order. The emergency care order shall contain:
(1) a written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding;
(2) the date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title; and
(3) notice of a parent’s right to counsel at the temporary care hearing.
(c) Conditional custody order. If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian, the court may deny the request for an emergency care order and issue an emergency conditional custody order. The order shall contain:
(1) conditions and limitations necessary to protect the child, the community, or both;
(2) the date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title; and
(3) notice of a parent’s right to counsel at the hearing. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2021, No. 105 (Adj. Sess.), § 617, eff. July 1, 2022.)
§ 5254. Notice of emergency care order and temporary care hearing
(a) Notice to custodial parent. An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child. If delivery cannot be made in a timely manner, the officer shall otherwise notify or cause to be notified the custodial parent, guardian, or custodian of the order; the date, time, and place of the temporary care hearing; and the right to counsel. If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the custodial parent, guardian, or custodian.
(b) Notice to noncustodial parent. The Department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care or conditional custody order; notice of the date, hour, and place of the temporary care hearing; and of the right to counsel. If the noncustodial parent cannot be located, the Department shall provide to the court a summary of the efforts made to locate the noncustodial parent.
(c) Notice to other parties. The court shall notify the following persons of the date and time of the temporary care hearing:
(1) The State’s Attorney.
(2) The Department.
(3) An attorney to represent the child.
(4) A guardian ad litem for the child.
(5) An attorney to represent each parent. The attorney may be Court-appointed in the event a parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5255. Temporary care hearing
(a) A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title. State holidays shall be excluded from the computation of 72 hours. If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.
(b) If the State’s Attorney is seeking a temporary care order, the State’s Attorney shall file a petition on or before the temporary care hearing. If the State’s Attorney elects not to file a petition, the State’s Attorney shall so notify the court, and the court shall vacate any temporary orders.
(c) The following persons shall be present at the temporary care hearing:
(1) the child;
(2) the child’s custodial parent, guardian, or custodian, unless he or she cannot be located or fails to appear in response to notice;
(3) the child’s guardian ad litem;
(4) an attorney for the child;
(5) an attorney for the custodial parent, if requested;
(6) a representative of the Department; and
(7) the State’s Attorney.
(d) A noncustodial parent and his or her attorney shall have the right to be present at the hearing. The hearing shall not be delayed by reason of the inability of the Department to locate the noncustodial parent.
(e) The Department shall provide the following information to the court at the hearing:
(1) Any reasons for the child’s removal that are not set forth in the affidavit required pursuant to section 5252 of this title.
(2) Services, if any, provided to the child and the family in an effort to prevent removal.
(3) The need, if any, for continued custody of the child with the Department pending a hearing to adjudicate the merits of the petition.
(4) Services that could facilitate the return of the child to the custody of the parent or guardian.
(5)(A) The identity of a noncustodial parent and any relatives known to the Department who may be suitable, willing, and available to assume temporary custody of the child.
(B) With respect to any person whom the Department identifies pursuant to this subdivision, the Department shall conduct an assessment of the suitability of the person to care for the child. The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection (e), and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home. The court may continue the hearing if necessary to permit the Department to complete the assessment.
(C) The Department shall request from the Vermont Crime Information Center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision. The request shall be in writing and shall be accompanied by a release signed by the person. The Department through the Vermont Crime Information Center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed. If no disqualifying record is identified at the state level, the Department through the Vermont Crime Information Center shall request from the Federal Bureau of Investigation (FBI) a National Criminal History Record Check of the person’s criminal history. The request to the FBI shall be accompanied by a set of the person’s fingerprints and a fee established by the Vermont Crime Information Center. The Vermont Crime Information Center shall send the Department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the Department that no record exists. The Department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont Crime Information Center. Upon completion of the process under this subdivision, the person’s fingerprint card shall be destroyed.
(6) Additional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act pursuant to 15 V.S.A. chapter 20 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq.
(f) All parties shall have the right to present evidence on their own behalf and examine witnesses. Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible. The court may in its discretion limit testimony and evidence to only that which goes to the issues of removal, custody, and the child’s welfare.
(g) The temporary care hearing shall also be a preliminary hearing on the petition. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2013, No. 119 (Adj. Sess.), § 18.)
§ 5256. Temporary care order
(a) The court shall order that custody be returned to the child’s custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:
(1) The child cannot be controlled at home and is at risk of harm to self or others.
(2) Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.
(3) The child’s welfare is otherwise endangered.
(b) Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, and the safety of the community, including:
(1) a conditional custody order returning custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitation as the court may deem necessary and sufficient to protect the child and the community;
(2) an order transferring temporary custody of the child to a noncustodial parent or a relative;
(3) a temporary care order transferring temporary custody of the child to the Commissioner.
(c)(1) If the court transfers custody of the child to the Commissioner, the court shall issue a written temporary care order. The order shall include:
(A) a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and
(B) a finding as to whether reasonable efforts were made to prevent the unnecessary removal of the child from the home.
(2) If at the conclusion of the hearing the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.
(3) The order may include such other provisions as may be necessary for the protection and welfare of the child, including:
(A) conditions of release;
(B) an order for parent-child contact under such terms and conditions as are necessary for the protection of the child;
(C) an order that the Department provide the child with services if legal custody of the child has been transferred to the Commissioner;
(D) an order that the Department refer a parent to services;
(E) a genetic testing order if parentage of the child is at issue;
(F) an order that the Department make diligent efforts to locate the noncustodial parent;
(G) an order that the custodial parent provide the Department with names of all potential noncustodial parents and relatives of the child; and
(H) an order establishing protective supervision and requiring the Department to make appropriate service referrals for the child and the family if legal custody is transferred to an individual other than the Commissioner.
(4) In his or her discretion, the Commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (3)(C) of this subsection. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2021, No. 105 (Adj. Sess.), § 618, eff. July 1, 2022.)
§ 5257. Filing of initial case plan
(a) If a temporary care order is issued granting custody to the Commissioner, the Department shall prepare and file with the court an initial case plan for the child and the family within 60 days of the child’s removal from the home. The Department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.
(b) The initial case plan shall not be used or referred to as evidence prior to a finding that the child has committed a delinquent act. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5258. Postdisposition review and permanency review for delinquents in custody
Whenever custody of a delinquent child is transferred to the Commissioner or the court orders conditional custody of a child, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title. At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the Department. The court may accept or reject the plan, but may not designate a particular placement for a child in the Department’s legal custody. Any conditional custody order shall be subject to review pursuant to section 5258a of this title. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 170 (Adj. Sess.), § 9, eff. Sept. 1, 2016.)
§ 5258a. Duration of conditional custody orders postdisposition
(a) Conditional custody orders to parents. Whenever the court issues a conditional custody order transferring custody to a parent either at or following disposition, the presumptive duration of the order shall be no more than six months from the date of the disposition order or the conditional custody order, whichever occurs later, unless otherwise extended by the court after hearing. At least 14 days prior to the termination of the order, any party may file a request to extend the order pursuant to subsection 5113(b) of this title. Upon such motion, the court may extend the order for an additional period of time not to exceed six months. Prior to vacating the conditional custody order, the court may schedule a hearing on its own motion to review the case prior to discharging the conditions. If a motion to extend is not filed, the court shall issue an order vacating the conditions and transferring full custody to the parent without conditions.
(b) Custody orders to nonparents.
(1) When the court at disposition issues an order continuing or transferring legal custody with a nonparent pursuant to subdivision 5232(b)(3) of this title, the court shall set the matter for a hearing six months from the date of disposition or custody order, whichever occurs later. At the hearing, the court shall determine whether it is in the best interests of the child to:
(A) transfer either full or conditional custody of the child to a parent;
(B) establish a permanent guardianship pursuant to 14 V.S.A. § 2664 with the nonparent who has had custody of the child as the guardian; or
(C) terminate residual parental rights and release the child for adoption.
(2) If, after hearing, the court determines that reasonable progress has been made toward reunification and that reunification is in the best interests of the child but will require additional time, the court may extend the current order for a period not to exceed six months and set the matter for further hearing. (Added 2015, No. 170 (Adj. Sess.), § 10, eff. Sept. 1, 2016.)
- Subchapter 004: Probation
§ 5261. Powers and responsibilities of the Commissioner regarding juvenile probation
The Commissioner shall be charged with the following powers and responsibilities regarding the administration of juvenile probation:
(1) to maintain supervision of juveniles placed on probation;
(2) to supervise the administration of juvenile probation services, including the authority to enter into contracts with community-based agencies to provide probation services, which may include restitution and community service programs, and to establish policies and standards and adopt rules regarding juvenile probation investigation, supervision, casework and caseloads, record-keeping, and the qualification of juvenile probation officers; and
(3) to prescribe rules, consistent with any orders of the court, governing the conduct of juveniles on probation. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5262. Conditions of probation
(a) The conditions of probation shall be such as the court in its discretion deems necessary to ensure to the greatest extent reasonably possible that the juvenile will be provided a program of treatment, training, and rehabilitation consistent with the protection of the public interest. The court shall provide as an explicit condition of every juvenile probation certificate that if the juvenile is adjudicated a delinquent or is convicted of an adult crime while on probation, then the court may find the juvenile in violation of the conditions of probation.
(b) The court may, as a condition of probation, require that the juvenile:
(1) Work faithfully for a prescribed number of hours at a community service activity acceptable to the court or, if so ordered by the court, at a community service activity acceptable to a probation officer.
(2) Make restitution or reparation to the victim of the juvenile’s conduct for the damage or injury that was sustained. When restitution or reparation is a condition of probation, the court shall fix the amount thereof. The court shall further determine the amount the juvenile can or will be able to pay and fix the manner of performance. In the alternative, the court may refer the determination of the amount, the ability to pay, and the manner of performance to a restorative justice panel.
(3) Participate in programs designed to develop competencies to enable the child to become a responsible and productive member of the community.
(4) Refrain from purchasing or possessing a firearm or ammunition, any destructive device, or any dangerous weapon unless granted written permission by the court or juvenile probation officer.
(5) Report to a juvenile probation officer at reasonable times as directed by the court or the probation officer.
(6) Permit the juvenile probation officer to visit the juvenile at reasonable times at home or elsewhere.
(7) Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer.
(8) Answer all reasonable inquiries by the juvenile probation officer and promptly notify the probation officer of any change in address or employment.
(9) Satisfy any other conditions reasonably related to the juvenile’s rehabilitation.
(10) Reside at home or other location specified by the court.
(11) Attend or reside at an educational or vocational facility or a facility established for the instruction, recreation, or residence of persons on probation.
(12) Work faithfully at suitable employment or faithfully pursue a course of study or of vocational training that will equip the juvenile for suitable employment.
(13) Undergo available medical treatment, participate in psychiatric treatment or mental health counseling, and participate in alcohol or drug abuse assessment or treatment on an outpatient or inpatient basis. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5263. Juvenile probation certificate
(a) When a juvenile is placed on probation, the court shall issue a written juvenile probation certificate setting forth:
(1) the name of the juvenile;
(2) the nature of the delinquent act committed by the juvenile;
(3) the date and place of the juvenile delinquency hearing;
(4) the order of the court placing the juvenile on probation; and
(5) the conditions of the juvenile’s probation.
(b) The juvenile probation certificate shall be furnished to and signed by the juvenile and a custodial parent, guardian, or custodian of the child, if other than parent. It shall be fully explained to them, and they shall be informed about the consequences of violating the conditions of probation, including the possibility of revocation of probation. A copy of the juvenile probation certificate shall also be furnished to the Commissioner. The probation certificate is not invalidated if it is not signed as required by this subsection.
(c) The signature of a custodial parent, guardian, or custodian on a probation certificate shall constitute verification that the parent, guardian, or custodian understands the terms of juvenile probation and agrees to facilitate and support the child’s compliance with such terms and to attend treatment programs with the child as recommended by the treatment provider.
(d) The juvenile probation certificate shall be full authority for the exercise by the Commissioner of all the rights and powers over and in relation to the juvenile prescribed by law and by the order of the court. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5264. Modification of conditions
(a) During the period of probation, the court, on application of a juvenile probation officer, the State’s Attorney, the juvenile, or on its own motion, may modify the requirements imposed upon the juvenile or add further requirements authorized by section 5262 of this title. A juvenile may request modification of a restitution issue determined by a restorative panel.
(b) Whenever the court proposes any modification of the conditions of probation, the juvenile probationer shall have a reasonable opportunity to contest the modification prior to its imposition. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5265. Violation of conditions of probation
(a) If the juvenile fails to comply with conditions of probation, the State’s Attorney, a juvenile probation officer, or the court on its own motion may initiate a proceeding to establish that the juvenile is in violation of probation conditions.
(b) A juvenile probationer shall not be found in violation of conditions of probation unless the juvenile probationer is found to have violated a condition of probation, is again adjudicated a delinquent, or is convicted of a crime. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5266. Summons, apprehension, and prehearing placement of juvenile probationer
At any time before the discharge of a juvenile probationer or the termination of the period of probation:
(1) The court may summon the juvenile to appear before it or may issue an order for the juvenile’s apprehension and placement in a detention or treatment facility.
(2) Any juvenile probation officer may apprehend a juvenile probationer or may authorize any officer to do so by giving the officer a written statement setting forth that the juvenile has, in the judgment of the juvenile probation officer, violated a condition of probation. The written statement delivered with the juvenile by the apprehending officer to the supervisor of the juvenile detention or treatment facility or residential program to which the juvenile is brought for prehearing placement shall be sufficient authority for maintaining the juvenile in the facility or residential program.
(3) Any juvenile probationer apprehended or placed in accordance with the provisions of this chapter shall have no right of action against the juvenile probation officer or any other person because of such apprehension or placement. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3, § 94, eff. Feb. 17, 2011.)
§ 5267. Previolation hearing
(a) Whenever a juvenile probationer is apprehended and placed on the grounds that the juvenile has violated a condition of probation, the juvenile shall be given a hearing before a judicial officer prior to the close of business on the next court business day in order to determine whether there is probable cause to hold the juvenile for a violation hearing. The juvenile and the adult who signed the probation certificate shall be given:
(1) notice of the previolation hearing and its purpose and the allegations of violations of conditions of probation; and
(2) notice of the juvenile’s right to be represented by counsel and right to be assigned counsel if the juvenile is unable to obtain counsel.
(b) At the previolation hearing the juvenile shall be given:
(1) an opportunity to appear at the hearing and present evidence on his or her own behalf; and
(2) upon request, the opportunity to question witnesses against him or her unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness.
(c) If probable cause is found to exist, the juvenile shall be held for a hearing to determine if the juvenile violated the conditions of probation. If probable cause is not found to exist, the proceedings shall be dismissed.
(d) A juvenile held under this section pursuant to a request to find the juvenile in violation of probation may be released by a judicial officer pending hearing or appeal. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3, § 95, eff. Feb. 17, 2011.)
§ 5268. Notice; violation hearing
(a) The court shall not find a juvenile in violation of the juvenile’s probation without a hearing, which shall be held promptly in the court in which the probation was imposed. If the juvenile is held in detention prior to the hearing, the hearing shall take place at the earliest possible time. Prior to the hearing, the juvenile and the adult who signed the probation certificate shall receive a written notice of the hearing at his or her last known address stating that the juvenile has allegedly violated one or more conditions of probation and which condition or conditions have been violated. At the hearing, the juvenile shall have:
(1) the right to legal counsel if requested by the juvenile probationer or the adult who signed the probation certificate to be assigned by the court in the same manner as in criminal cases;
(2) the right to disclosure of evidence against the juvenile;
(3) the opportunity to appear and to present evidence on the juvenile’s behalf; and
(4) the opportunity to question witnesses against the juvenile.
(b) The State’s Attorney having jurisdiction or the Commissioner shall establish the alleged violation by a preponderance of the evidence if the juvenile probationer contests the allegation. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2021, No. 105 (Adj. Sess.), § 619, eff. July 1, 2022.)
§ 5269. Disposition alternatives upon violation of conditions of probation
If a violation of conditions of probation is established, the court may, in its discretion, modify the conditions of probation or order any of the disposition alternatives provided for in section 5232 of this title. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5270. Final judgment
An order placing a juvenile on probation and a finding that a juvenile violated a condition of probation shall constitute a final judgment. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5271. Discharge from probation
(a) The court placing a juvenile on probation may terminate probation and discharge the juvenile at any time.
(b) Upon the termination of the period of probation, the juvenile probationer shall be discharged from probation. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5272. Juvenile Justice Unit; Juvenile Justice Director
(a) A Juvenile Justice Unit is created in the Family Services Division of the Department. The Unit shall be headed by a Juvenile Justice Director.
(b) The Juvenile Justice Director shall have the responsibility and authority to monitor and coordinate all State and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.
(c) The Juvenile Justice Director shall ensure that the following occur:
(1) development of a comprehensive plan for a coordinated and sustained statewide program to reduce the number of juvenile offenders, involving State, regional, and local officials in the areas of health, education, prevention, law enforcement, corrections, teen activities, and community wellness;
(2) cooperation among State, regional, and local officials; court personnel; service providers; and law enforcement agencies in the formulation and execution of a coordinated statewide juvenile justice program;
(3) cooperation among appropriate departments, including the Department; the Agency of Education; the Departments of Corrections, of Labor, of Mental Health, of Public Safety, and of Disabilities, Aging, and Independent Living; and the Department of Health’s Division of Substance Use Programs;
(4) a study of issues relating to juvenile justice and development of recommendations regarding changes in law and rules, as deemed advisable; and
(5) compilation of data on issues relating to juvenile justice and analysis, study, and organization of such data for use by educators, researchers, policy advocates, administrators, legislators, and the Governor. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2021, No. 115 (Adj. Sess.), § 8, eff. July 1, 2022.)
- Subchapter 005: Youthful Offenders
§§ 5280-5288. Repealed. 2017, No. 72, § 8, eff. July 1, 2018.
- Subchapter 006: Placement in Secure Facilities
§ 5291. Detention or treatment of individuals charged as delinquents in secure facilities for the detention or treatment of delinquent children
(a) Prior to disposition, the court shall have the sole authority to place a child who is in the custody of the Department in a secure facility used for the detention or treatment of delinquent children until the Commissioner determines that a suitable placement is available for the child. The court shall not order placement in a secure facility without a recommendation from the Department that placement in a secure facility is necessary. The court order shall include a finding that no other suitable placement is available and the child presents a risk of injury to himself or herself, to others, or to property.
(b) Absent good cause shown and notwithstanding section 5227 of this title, when a child is placed in a secure facility pursuant to subsection (a) of this section and remains in a secure facility for 45 days following the preliminary hearing, the merits hearing shall be held and merits adjudicated within 45 days of the date of the preliminary hearing or the court shall dismiss the petition with prejudice. If merits have been found, the court shall review the secure facility placement order at the merits hearing.
(c) If a child is placed in a secure facility pursuant to subsection (a) of this section and secure facility placement continues following the merits hearing review pursuant to subsection (b) of this section, the court shall, within 35 days of the merits adjudication:
(1) hold the disposition hearing; or
(2) if disposition is not held within 35 days, hold a hearing to review the continued secure facility placement.
(d) A child placed in a secure facility on an order pursuant to subsection (a), (b), or (c) of this section with a finding that no other suitable placement is available and the child presents a risk of harm to others or to property shall be entitled to an independent, second evidentiary hearing, which shall be a hearing de novo by a single justice of the Vermont Supreme Court. The Chief Justice may make an appointment or special assignment in accordance with 4 V.S.A. § 22 to conduct the de novo hearing required by this subsection. Unless the parties stipulate to the admission of portions of the trial court record, the de novo review shall be a new evidentiary hearing without regard to the record compiled before the trial court.
(e) Following disposition, the Commissioner shall have the sole authority to place a child who is in the custody of the Department in a secure facility for the detention or treatment of delinquent children pursuant to the Department’s administrative policies on admission. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3, § 96, eff. Feb. 17, 2011; 2017, No. 72, § 6, eff. July 1, 2018; 2019, No. 124 (Adj. Sess.), § 10; 2021, No. 105 (Adj. Sess.), § 620, eff. July 1, 2022.)
§ 5292. Detention in adult facilities of minors charged or adjudicated as delinquents
(a) A minor charged with a delinquent act shall not be detained under this chapter in a jail or other facility intended or used for the detention of adults unless the child is alleged to have committed a crime punishable by life imprisonment and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.
(b) A minor who has been adjudicated as a delinquent child shall not by virtue of such adjudication be committed or transferred to an institution or other facility used primarily for the execution of sentences of persons convicted of a crime.
(c) The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor who is or appears to be under the age of 18 years is received at the facility other than pursuant to subsection (a) of this section or section 5293 of this title and shall deliver the minor to the court upon request of the court or transfer the minor to the detention facility designated by the court by order. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.)
§ 5293. Disposition of minors adjudicated as adult offenders; separation of persons under 18 years from adults
(a) Pretrial detention.
(1) A minor who is under the age of 18 who has been arrested shall not be placed in a facility for adult offenders unless a felony charge has been filed in the Criminal Division of the Superior Court or the Criminal Division of the Superior Court has exercised jurisdiction over the matter and the State’s Attorney has determined that a felony charge will be filed without delay. A minor who is eligible for release under 13 V.S.A. chapter 229 shall be released.
(2)(A) A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere:
(i) be released to his or her custodial parent, guardian, or custodian; or
(ii) be delivered to the Criminal Division of the Superior Court.
(B) If the minor is delivered to the Criminal Division of the Superior Court, the arresting officer shall immediately file written notice thereof with the court together with a statement of the reason for taking the minor into custody. A minor who is eligible for release under 13 V.S.A. chapter 229 shall be released. In the event that the minor is not released:
(i) the minor shall not be detained in a facility for adult offenders; and
(ii) the court shall defer to the Commissioner of Corrections concerning the facility in which the minor shall be detained.
(b) Sentencing of minor. If a minor is convicted of an offense in a court of criminal jurisdiction as an adult, the court shall sentence the minor as an adult.
(c) Placement of minors under 16. The Commissioner of Corrections shall not place a minor under the age of 16 who has been sentenced to a term of imprisonment in a correctional facility used to house adult offenders.
(d) Placement of minors over 16 convicted of felony. The Commissioner of Corrections may place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a felony and who has been sentenced to a term of imprisonment.
(e) Placement of minor over 16 convicted of misdemeanor. The Commissioner of Corrections shall not place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a misdemeanor.
(f) Transfer of minor at 18th birthday. At the 18th birthday of a minor convicted of a misdemeanor, the Commissioner may transfer the minor to a facility for adult offenders.
(g) Applicability. The provisions of this section shall apply to the commitment of minors to institutions within or outside the State of Vermont. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.)
§ 5294. Interests of justice hearing
Not later than the next business day after a juvenile who is awaiting trial or other legal process and who is treated as an adult for prosecution in the Criminal Division is taken into custody, the court shall hold a hearing and determine whether to issue a written order, pursuant to 34 U.S.C. § 11133(a)(11)(B), that it is in the interests of justice to hold the juvenile in a jail or other secure facility for adults owned or operated by the Department of Corrections and, if such an order is issued, whether to allow sight or sound contact with adult inmates. Hearings held and orders issued pursuant to this section shall conform with the requirements of 34 U.S.C. § 11133(a)(11)(B), including the criteria set forth therein. (Added 2021, No. 160 (Adj. Sess.), § 17, eff. June 1, 2022.)
