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Rule 1 – Procedure for Juvenile Delinquency Proceedings

May 14, 2021 | Family Law, Vermont

(a)Applicability of Rules to Juvenile Proceedings.

(1)In General. The Rules of Criminal Procedure shall apply to all delinquency proceedings commenced pursuant to Chapters 51 and 52 of Title 33 of the Vermont Statutes Annotated or transferred from other courts pursuant to 33 V.S.A. § 5203, except as otherwise provided by this rule. References to an information or an indictment shall be deemed to be references to the petition filed under Chapter 52.
(2)Rules Not Applicable. The following Vermont Rules of Criminal Procedure shall not apply in delinquency proceedings: Rules 1 (Scope), 5(b) and (d)-(f) (Appearance Before Judicial Officer), 6 (Grand Jury), 7(a)-(c) (Indictment and Information), 8(b) (Joinder of Defendants), 10 (Arraignment), 17.1 (Pretrial Conference), 23(a) and (b) (Trial by Jury), 24 (Jurors), 29(b) and (c) (Motion for Judgment of Acquittal in Jury Cases), 29.1 (Closing Argument), 30 (Instructions), 31 (Verdict), 32 (Sentencing), 34 (Arrest of Judgment), 35 (Correction of Sentence), 38 (Stays), 43 (Presence of the Defendant), 44 (Right to Counsel), 46 (Release from Custody), 50(a) (Trial Calendar), 53 (Recording of Proceedings), 59 (Effective Date) and 60 (Title).
(3)Rules Modified. The following Vermont Rules of Criminal Procedure shall apply to the extent set forth in this paragraph: Vermont Rule of Criminal Procedure 3 shall not apply except that in those situations in which Rule 3 authorizes a law enforcement officer to arrest an adult without a warrant a law enforcement officer may, without arrest warrant, emergency care order or other order of the juvenile court, take a child into custody for the purposes of initiating the statutory procedures set forth in 33 V.S.A. §§ 5251, 5252 and 5253. Rule 4 shall not apply except to the extent it is incorporated by reference into Rule 5(c). Rule 5(a), 5(c) and 5(h) shall apply to any child who is the subject of an emergency care order or other order of the juvenile court under 33 V.S.A. § 5251. Rules 11, 11.1, 12, 12.1, 15, 16, 16.1, 16.2, 17 and 26 shall be subject to subdivisions (d), (e), (h) and (i) of this rule and to 33 V.S.A. § 5110; however, in lieu of pleas of guilty or not guilty the pleas shall be admissions or denials, pleas shall be entered at the preliminary hearing, the pretrial hearing shall be held within 14 days of the preliminary hearing, and pretrial motions shall be filed at or before the merits hearing. Rules 13 and 14 shall apply but shall not authorize trial together of children accused of delinquent acts except when each child consents. Rule 32.1 shall apply except that references to a person in custody shall be deemed to be references to a person subject to a detention order or other order of the juvenile court, and Rule 32.1(a)(3) shall not apply. Rule 42 shall apply but only to adults and, upon appropriate ruling that a child should be tried as an adult, to children who may be tried as adults pursuant to Vermont law. Rule 47 shall apply but memoranda in opposition shall be filed within 7 days unless otherwise ordered by the court. Rule 50(b) and (c) shall apply subject to subdivision (b) of this rule. Rule 54 shall apply but “court” shall be deemed to mean the Presiding Judge of the family court. Rules 55 and 56 shall apply but the docket shall not be labelled “criminal,” no trial calendar need be maintained, and all books, records and proceedings shall be subject to 33 V.S.A. § 5110.
(b) Petition; Submission of Jurisdictional Facts; Scheduling.

(1)Petition. A proceeding under this rule shall be commenced by a petition as provided under Chapter 52 of Title 33 of the Vermont Statutes Annotated. The petition shall be supplemented by facts regarding the race and ethnicity of the subject child contained in Form 101, Law Enforcement Juvenile Data Sheet, prepared by law enforcement.
(2)Submission of Jurisdictional Facts. The party filing a petition pursuant to paragraph (1) of this subdivision shall supplement the petition with the information required by 15 V.S.A. § 1079(a) to the extent known to that party at that time. At the initial hearing the parents of the child and any other person acting as a parent shall complete and submit an affidavit as to that information on a form to be provided by the clerk. At the hearing, the court may inquire as to any additional facts deemed necessary, and the parties shall answer under oath as provided in 15 V.S.A. § 1079(c). All parties have the continuing duty to supplement the information as provided in 15 V.S.A. § 1079(d).
(3)Scheduling. A petition under Chapter 52 of Title 33 of the Vermont Statutes Annotated, a motion under §§5113 or 5115 of 33 V.S.A. Chapter 51, or any other motion if cause is shown for an expedited hearing, shall be set for hearing at the earliest possible time. A hearing on the merits of a petition or disposition hearing shall be continued only for good cause shown and found by the court.
(c) Preliminary Hearing. At the temporary care hearing, or if no temporary care hearing is held, at or within a reasonable time after the filing of a petition, a preliminary hearing shall be held. Counsel shall be assigned prior to the preliminary hearing. Upon order of the court a guardian ad litem other than a parent may be appointed for the child. If not assigned prior to the hearing, a guardian ad litem, who may be the child’s parent, shall be appointed for the child at the hearing. A denial shall be entered to the allegations of the petition unless the child, after adequate consultation with the guardian ad litem and counsel, enters an admission.
(d)Scheduling; Discovery.

(1)In General. At the preliminary hearing, unless an admission is accepted by the court, the court shall schedule a pretrial hearing and a hearing on the merits.
(2)Discovery Orders. At the preliminary hearing on the request of a party or on the judge’s own initiative the judge shall issue a discovery order. The order shall set forth dates by which: the state’s attorney shall provide to the child’s attorney all of the discovery required by Vermont Rule of Criminal Procedure 16; the child’s attorney shall provide to the state’s attorney all of the information required by Vermont Rules of Criminal Procedure 12.1 and 16.1; depositions shall be completed; records of the Family Services Division of the Department for Children and Families shall be inspected or copied; and all discovery shall be completed.
(3)Scheduling of Pretrial Hearings and Motions Hearings. The court shall schedule a pretrial hearing within 14 days of the preliminary hearing. The court may schedule a motions hearing at any time.
(4)Depositions. The procedures set forth in Vermont Rule of Criminal Procedure 15 for the taking of depositions in felonies shall govern the taking of depositions in delinquency proceedings where the offense charged would be a felony if the charge were in District Court. Vermont Rule of Criminal Procedure 15(e)(4) shall govern the taking of depositions in delinquency proceedings where the offense charged would be a misdemeanor if the charge were in District Court. The notice of taking of a deposition may be given orally or in writing, at least 48 hours prior to any deposition.
(5)Department for Children and Families Records. Upon the filing of a petition, a party’s attorney shall be permitted to inspect or photocopy all material or information within the possession, custody or control of the Family Services Division of the Department for Children and Families which relates to the child, the parent(s), the guardian(s), or which is otherwise relevant to the subject matter of the proceedings. However, any party or the department may promptly file a motion for a protective order pursuant to Vermont Rule of Criminal Procedure 16.2, or an agent of the department may make an objection to disclosure of a specific record, and state the reasons for the objection, at the temporary care hearing or preliminary hearing.
(e) Pretrial Hearing. A pretrial hearing shall be held prior to the merits hearing. All parties shall attend each pretrial hearing, unless otherwise ordered by the court.
(f)Parties and Participants Other Than Child and Attorney Representing the State.

(1)Notice. All persons who by statute are parties to these proceedings shall receive notice of all proceedings and copies of all pleadings.
(2) Participation. Only the child and the attorney representing the state shall be entitled to participate in pretrial discovery relating to the merits hearing, call or examine witnesses at the merits hearing, or otherwise actively participate at the merits hearing or proceedings relating to the merits hearing, unless the court for good cause shown at or before the merits hearing grants permission. The court’s order of permission may place limits on the participation and may condition participation upon prompt compliance with such discovery as the order specifies. All persons who by statute are parties to these proceedings shall be entitled to participate fully in the disposition hearing and at discovery and other proceedings relating only to the disposition hearing. In any proceeding at which a party other than the child or the attorney representing the state intends to call a witness, the name and address of the witness and any written statement of the witness shall be disclosed at least five days prior to the hearing, except for good cause shown.
(3)Notice to Caregivers.

(A) Notice of a permanency review held in connection with a delinquency proceeding under Chapter 52 of Title 33 of the Vermont Statutes Annotated must be provided to the current caregiver of a child who is the subject of the hearing, including foster parents (if any) and any preadoptive parent or relative providing care for the child. The notice shall specify that the caregiver has a right to be heard at the hearing but that this notice and the right to be heard do not confer party status on a caregiver who does not otherwise have that status.
(B) If the child is in the custody of the Department for Children and Families, the Department shall give such notice by ordinary first-class mail, by personal delivery, or, if notice by those methods will not be timely, by telephone. If notice is given by telephone, a copy of the notice shall be mailed or delivered to the caregiver as soon as possible thereafter. If the child is not in the custody of the Department, notice by ordinary first-class mail shall be given by the court.
(C) If the caregiver does not appear at the hearing, the court shall inquire whether, and how, the caregiver was given notice. If the court finds that adequate notice was not given to the caregiver, the court shall continue the hearing until the agency or officer responsible for giving notice certifies to the court that such notice has been given.
(g) Discovery of Disposition Information.

(1)Disposition Case Plans. The disposition case plan made by the Commissioner for Children and Families pursuant to 33 V.S.A. § 5230 and any report of an expert witness shall be filed with the court and arrangements shall be made for their receipt by the guardian ad litem and attorneys of record seven days prior to the disposition hearing. Within the same time period, notice of the availability of each report, for reading at the court, shall be mailed to each party not represented by counsel. For good cause shown, the report of an expert witness may be filed and disclosed subsequent to this time period.
(2)Other Information. Discovery prior to the disposition hearing shall be as set forth in subdivision (d) above, except that written statements other than those from expert witnesses to be submitted to the court at the hearing shall be disclosed and made available to the parties for inspection and copying no later than the last business day prior to the hearing.
(h) Physical and Mental Examinations in Delinquency Proceedings.

(1)In General. The court may order a physical or mental examination pursuant to Vermont Rule of Criminal Procedure 16.1(a)(1)(I). No communications made in the course of such examination shall be used, directly or indirectly, to incriminate the person being examined.
(2)After a Finding of Delinquency. After a finding of delinquency has been entered by court, the court may order a physical or mental examination pursuant to Vermont Rule of Civil Procedure 35. However, Vermont Rule of Civil Procedure 35(b) shall not apply. The judge shall select the person or persons by whom the examination is to be made, and the court’s order shall include a date by which a report of the examination shall be filed with the court and served on the parties. No communications made in the course of such examination shall be used, directly or indirectly, to incriminate the person being examined.
(i) Determination of Competence to Be Subject to Delinquency Proceedings.

(1)In general. The issue of a child’s competence to be subject to delinquency proceedings may be raised by motion of any party, or upon the court’s own motion, at any stage of the proceedings.
(2)Mental Examination. Competence shall be determined through a mental examination conducted by a psychologist or psychiatrist selected by the court. In addition to the factors ordinarily considered in determining competence in criminal proceedings, the examiner shall consider the following as appropriate to the circumstances of the child:

(A) The age and developmental maturity of the child;
(B) whether the child suffers from mental illness or a developmental disorder, including mental retardation;
(C) whether the child has any other disability that affects the child’s competence; and
(D) any other factor that affects the child’s competence.

The child, or the state, shall have the right to obtain an independent examination by an expert.

(3)Report. The report of an examination ordered by the court or obtained by the child or the state is to be sealed and filed in the juvenile court, with copies transmitted to counsel and available to the parties for review.
(4)Statements Made in the Course of Examination. No statement made in the course of an examination by the child examined, whether or not the child has consented to, or obtained, the examination, shall be admitted as evidence in the delinquency proceedings for the purpose of proving the delinquency alleged or for the purpose of impeaching the testimony of the child examined.
(5)Hearing. The issue of competence shall be determined by the court after a hearing at which all parties are entitled to present evidence. The hearing shall be held as soon as practicable after the reports of the examination or examinations are filed.
(6)Determination of Competence. If the court determines that the child is competent to be subject to delinquency proceedings, the proceeding shall continue without delay.
(7)Determination of Incompetence. If the court determines that the child is not competent to be subject to delinquency proceedings, the court shall dismiss the petition without prejudice; provided that, if the child is found incompetent by reason of developmental disabilities or mental retardation, the dismissal may be with prejudice.
(j) Withdrawal of Admission of Delinquency. A motion to withdraw an admission of delinquency must be made prior to or within 30 days after the date of entry of an adjudication of delinquency. If the motion is made before a disposition order is made, the court may permit withdrawal of the admission if the child shows any fair and just reason and that reason substantially outweighs any prejudice which would result to the state from the withdrawal of the admission. If the motion is made after disposition, the court may set aside the adjudication of delinquency and permit withdrawal of the admission only to correct manifest injustice.

Vt. R. Fam. Proc. 1

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended Jan. 27, 2000, eff. May 1, 2000; amended May 12, 2006; eff. July 14, 2006; amended June 1, 2007, eff. July 1, 2007; amended Aug. 15, 2007, eff. Oct. 15, 2007; amended Nov. 12, 2008, eff. Jan. 12, 2009; amended Dec. 17, 2008, eff. Jan. 1, 2009; Feb. 24, 2010, eff. April 26, 2010; June 11, 2013, eff. Aug. 12, 2013; Dec. 11, 2014, eff. Feb. 13, 2015; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendments

Rule 1 is amended to change its 15- and 3-day time periods to 14 days and 5 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6 and V.R.Cr.P. 45, which adopt from the Federal Rules the day-is-a-day counting system, a simplified method of computing time periods. V.R.Cr.P. 45 applies under Rule 1, and V.R.C.P. 6 is generally applicable in the Family Division. See V.R.F.P. 2(a), 4.0(a), 9(e).

The amendments are intended both to achieve simplicity and to maintain uniformity with the Federal Rules and among the various bodies of Vermont procedural rules. In sum, most periods of 3 days are changed to 5 unless there is a specific reason for the shorter time. Periods of 5 to 20 days are converted to 7 or multiples of 7 for convenience. Thus, 5 days becomes 7. Seven days remains 7. Ten and 15 days become 14. Twenty days become 21. Several 10-day time periods were enlarged and changed to 28 days for consistency with the changed federal standard for motion practice. Thiity-day time periods remain unchanged. Forty-five and 50-day periods, not found in the Federal Rules, have been changed to 42 and 49 days, consistent with the “multiple of 7” simplification adopted in the Federal Rules. For details, see Reporter’s Notes to concuiTcnt amendments of V.R.C.P. 6 and V.R.Cr.P. 45.