Monday, March 28, 2016

Incarceration and Termination

In re M.W.2016 VT 28

By Elizabeth Kruska

This is a termination-of-parental-rights opinion regarding a dad. There have been a lot of TPR opinions over the last couple years, and I feel like SCOV is really shaping the law in Vermont with regard to juvenile proceedings. This is good for people who practice in juvenile court. This is also good for the people of our state. See, juvenile proceedings are confidential in Vermont. That helps to protect the families and children involved in the cases so that their very personal information isn’t aired in a public forum. On the other hand, once cases disappear behind the closed door of juvenile court, people on the other side are left wondering what happens. Really, the only bit of information the public gets about juvenile court goings-on (and for that matter, the Department for Children and Families/DCF), is through occasional Vermont Supreme Court opinions. And even then, that’s only the penguin standing on the very tip of the iceberg.

The reason I say all this is because some of the opinions we see seem very rooted in common sense, like this one. A member of the general public who has never set foot in juvenile court—or even thought about juvenile court—would probably look at the facts here and say it makes perfect sense. Harder, though, are the cases that aren’t as clear as this one.

So, here’s what happened. M.W. was born in 2010 and lived with Mom and Dad. The three lived in an apartment above a garage, situated about fifty feet from Mom’s parent’s house. Dad worked a lot, so Mom and Grandparents were the primary caregivers for M.W.

Sunday, March 27, 2016

Immediate Involvement

In re D.S., 2016 VT 38

By Andrew Delaney

It's nearly impossible to figure out what the "right" thing to do is in child-in-need-of-supervision cases.

D.S. was in the system before he was born. Three days before his birth, in fact, DCF filed a child-in-need-of-supervision (CHINS) petition. The trial court issued an emergency temporary care order placing him in the State’s custody upon his grand entrance into the world.

Mom and dad had a DCF history with their older kids, and that was the reason for D.S. being preemptively taken into custody. A couple days after D.S. was born, the court held a temporary-care hearing. At that hearing, mom and dad’s attorneys both argued for conditional custody to mom. The State argued for DCF custody with mom having supervised contact. The parties discussed a possible Lund Home placement if mom was amenable.

Saturday, March 26, 2016

Unlucky Dragon

State v. Alexander, 2016 VT 19

By Elizabeth Kruska

Where do we even begin? According to at least one Yelp!Reviewer, the Lucky Dragon Chinese Restaurant in Bennington has a buffet. It is not outside the realm of possibility that someone who might not know the name of the place, casually refers to it as the Chinese Buffet, or China Buffet, or something similar. You wouldn’t expect if you were in an unfamiliar town and were looking for a gas station and asked a police officer, “Where’s the gas station?” that the police would yank you out of your car and say it was suspicious because you didn’t ask for the Shell Station. If you were in Bennington and you asked someone, perhaps a police officer, for directions to the Chinese Buffet, it would stand to reason that the police officer might direct you to the actual Chinese restaurant that has a buffet. 

Maybe you’re hungry. Maybe you want a reasonably-priced, MSG-laden scoop of General Tso’s chicken that’s been sitting in a warming tray since yesterday. Maybe it’s your grandma’s favorite and it’s her birthday and you’re going to visit her, and she doesn’t get out much so you’re going to bring her a scoop o’ buffet chicken. She’s your grandma, after all. It’s the least you can do.

Or, maybe instead, you’re a black man in a cab, and the local police department is pretty sure you’re transporting drugs. And maybe you are, but the police don’t get to just detain you because they have a hunch.

Friday, March 18, 2016

Probation Conditions: Yes, We’re Doing This Again

State v. Careau

Not even kidding. This is another SCOV reversal of an overbroad probation conditions regarding restrictions on residence. This is something like the eighty-fourth of these cases in the last couple years. OK, maybe eighty-four is a little on the high side, but it’s a lot. One of these opinions is going to come right out and say to the trial court lawyers and judges, “oh, for heaven’s sake, we actually mean it when we say stop doing this and that means actually really stop doing this.” It’s a little bit like having a cat who likes to go on the countertop. You can tell the cat every single time not to go up there, and you can move him and put him on the floor, but he’s going to keep jumping onto the counter. Not that I live with any such cat who does that, or anything.

Mr. Careau got charged with one count of sexual assault on a minor and a count of unlawful restraint. He and his attorney worked out a deal where he pled guilty to the sexual assault and a count of unlawful restraint and would get sentenced to five to fifteen years to serve, all suspended but eighteen months to serve. Effectively, this means he would spend eighteen months in jail, and then come out on probation. An additional count of unlawful restraint got dismissed. A pre-sentence investigation was done and the corresponding report was filed with the court. Mr. Careau objected to some things in the report, and filed the objections in writing. Also, Mr. Careau indicated in writing that he was going to argue for a lesser sentence than had been agreed upon.

Thursday, March 17, 2016

Unintended Long-Term Vacation: The Consequences of Pleading Guilty and Deportation

State v. Sergio Mendez 

            This case is all about semantics. You say car, I say automobile. You say violin, I say fiddle. You say “may affect your ability to remain in the country,” I say “deportation.” The issue surrounds whether using “clearly equivalent language” is sufficient in lieu of saying outright “deportation.” For the sake of brevity: can you beat around the legal bush with words? I looked at inter-web sites that gave me the following synonyms for “deportation”: displacement, eviction, expulsion, extradition, removal, exile, expatriation, ostracism, and relegation (the winner is expatriation in my book). While I think judicial colloquy could be spiced up a little pizzazz (perhaps a recitation of a defendant’s rights in a Biggie Smalls-esque flow? Or informing them of their “Fif” Amendment right via Chappelle’s Show, but making them stale, sterile, and boring with formalistic language isn’t the answer (and so too agrees the SCOV).

Friday, March 11, 2016

Pay Gap

Vermont Human Rights Commission v. State2015 VT 138

By Elizabeth Kruska

There’s that great bumper sticker that says “feminism is the radical notion that women are people.” I know, you read that and chuckle and think, “of course women are people.” But a lot of time went by where the general societal thought was that women kind of weren’t exactly people, so it was ok to treat them/us unfairly. That it’s 2016 and we’re still having a conversation about whether women should be paid the same as men makes me want to throw things. The fact we’re talking about it means there are still people who think that women shouldn’t be paid the same as men. Those people need to get kicked in the shins.

Let’s make an egregious example. Say two high school juniors, neither of whom have ever had a job, both go to a fast food joint to apply for after-school work. The manager hires them both, they work the same hours during the same shift, and have similar performance. The manager can’t give Boy Worker $10 per hour and Girl Worker $8 per hour just because Boy is a boy and Girl is a girl. This seems pretty obvious.

Things get trickier as potential employees progress in their careers, because people apply for positions with different backgrounds, experience, and education. Let’s pretend for a second I apply for an attorney job and so does a young male attorney. Let’s pretend he has had a couple internships, but that this is his first actual job out of law school. I’ve been practicing more than ten years. It’s reasonable to think that I would be paid more than he because of our relative experience levels.

Sunday, March 6, 2016

Getting Stoned?

Brisson Stone, LLC v. Monkton, 2016 VT 15

By Andrew Delaney

This opinion deals with what constitutes extraction or removal of gravel. Specifically, can one make gravel in Monkton, or is one limited to taking away what’s already there? Let’s find out.

“Allen and Michael Brisson leased part of their 324-acre parcel in Monkton to Brisson Stone, LLC, to operate a quarry.” They—the Brissons and the LLC—applied for a “gravel extraction operation” permit with Monkton’s zoning administrator. There weren’t any natural gravel beds on the proposed site. Instead, the plan was to drill and blast ledge rock to produce rock and gravel. The applicants believed that the proposed gravel operation was allowed under Monkton’s zoning regulations.

The zoning Administrator kicked it over to the Developmental Review Board (DRB). An adjoining landowner, Claudia Orlandi, jumped in as an interested person under this statute.

Saturday, March 5, 2016

Crushing Custody Clash

Knutsen v. Cegalis, 2016 VT 2

By Andrew Delaney

This opinion uses the word “heartbreaking” twice. I can’t think of a better word.

Some background is probably in order. Mom and dad have a boy who’s ten-years old. They never married and split up when the boy was only a few months old. Primary custody went to dad on the basis that he was better suited to meet the boy’s developmental needs and foster a positive relationship with mom. That decision was affirmed by the SCOV years ago. Dad has since married another woman.

The case “has a long procedural history.” For some time, there was a “week-on; week-off” schedule. In 2012, dad filed a petition for a relief-from-abuse order on the boy’s behalf based on allegations that mom and boyfriend had sexually abused the boy. Mom filed a cross-motion to modify parental rights and responsibilities. The trial court held a four-day hearing. The trial court found that dad had failed to show that mom abused the boy and denied the relief-from-abuse petition.