Saturday, October 8, 2016

A Stressed System

In re A.S., 2016 VT 76

By Amy Davis

In this interesting per curiam opinion from the SCOV, our highest court resolves the actual appeal in a mere five paragraphs, then spends an additional 12 paragraphs addressing a problem we on the juvenile docket know all too well: scheduling.

Mom appeals the adjudication of her children as CHINS, claiming that the court erred in not considering evidence of changed circumstances after the State filed the CHINS petition. The State filed for CHINS based on a history of assaultive and abusive behavior from Mom’s relationship with K.S.’s father, and also on a history of substance abuse. The court adjudicated the children as CHINS on the events that led up the filing of the petition. The SCOV dismisses Mom’s appeal because this objection was not raised before the family court, thus resolving the issue on appeal.

The SCOV goes on to write about the long delay in the merits hearing of this case. The CHINS petition was filed on December 4, 2014. The court held a preliminary hearing on December 17, 2014 granting conditional custody to Mom. The State filed for an emergency care order on January 13, 2015, which the court granted. The court indicated that a 1-½-hour-long hearing was needed, but due to scheduling dilemmas and an overwhelmed juvenile docket, that hearing did not take place until November 5, 2015. The merits hearing was held on January 8, 2016, more than a year after the original petition.

The first problem in this case is that a temporary care hearing is supposed to occur within 72 hours of an emergency care order. The court never held an evidentiary hearing, but the parties reached a stipulation in May, five months later. The merits hearing is supposed to occur within 60 days after the temporary care order is issued. This happened in January 2016, 8 months after the temporary care agreement, and a full year after the filing of the original petition.

The timelines outlined by statute are there for a reason. In juvenile cases, family units are a fundamental group of society. When the state intervenes, the process that follows must be disposed of in a timely manner because while the CHINS is pending, the parents’ rights are truncated. Delays will disrupt a child and his/her stability, so the State’s interest in safety and child welfare is balanced against the parent’s interest in maintaining family integrity.

I quote the SCOV verbatim here because it really gets to the heart of what we see in the juvenile docket:
Unfortunately, due to the dramatic increase in the juvenile docket and a shortage of resources including judges, lawyers, guardians ad litem (GALs), and courtroom space, timely resolution was sacrificed in this case to provide the required process. Our impression from the many appeals filed here is that the statutory time deadlines have become fictitious “paper tigers.” The rapid expansion of child abuse and neglect and termination of parental rights (TPR) cases due to, at least in part, the recent increases in drug addiction weighs on the justice system. Abuse and neglect/TPR cases are frequently complex involving many parties and presenting difficult issues of addiction, co-occurring untreated mental-health problems, incarceration, homelessness and poverty, which all critically impact the welfare of children. Despite recent efforts made by the executive and legislative branches to alleviate some of the problems, for which we are grateful, every element of the juvenile justice system intended to address these concerns remains stretched thin. There is a shortage of GALs, who generously contribute their time. There is also a shortage of lawyers to represent parents and children in these cases. The scheduling problem has been aggravated by the sheer volume of the juvenile caseload in the courts. Courtroom space and judge time is at a premium. This is a system under great stress, and all branches of government must continue to work together if the situation is to be alleviated.
Some themes noted in this case are as follows: (1) The initial hearing and hearing on the emergency petition were scheduled and adjudicated in a timely manner; these filings should be given priority because the safety of the children is at issue; (2) delays occurred because it’s hard to find court time when all of the parties and their attorneys are available; the merits hearing in this case required a total of ten individuals, not including any witnesses; (3) even if everyone was available, the courtroom and the judge may not be available at that time; and (4) When there’s a heavy docket, the hearing might get cut short or bumped if another hearing runs over.

Just to clarify, nobody is at fault here. In fact, the judge, staff, GAL, DCF, and the lawyers all worked diligently to meet the law’s requirements. The factors influencing the delays in this case are systemic, and we must be open to trying new methods. The Legislature has authorized an additional superior court position, and additional positions in the Office of the Defender General and the Department of State’s Attorneys. It’s a start, but in my opinion, we have a long way to go.

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