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Rule 2 – Children in Need of Care or Supervision

May 14, 2021 | Family Law, Vermont

(a)Applicability of Rules to Juvenile Proceedings.

(1)In General. The Rules of Civil Procedure shall apply to all proceedings under Chapters 51 and 53 of Title 33 of the Vermont Statutes Annotated, except as otherwise provided in this rule. References to a complaint shall be deemed to be references to the petition filed under Chapter 53.
(2)Rules Not Applicable. The following Vermont Rules of Civil Procedure shall not apply in proceedings under this rule: Rules 2 (One Form of Action), 3 (Commencement), 3.1 (In Forma Pauperis), 4.1 (Attachment), 4.2 (Trustee Process), 4.3 (Arrest), 7(a) and (c) (Pleadings and Demurrers), 8 (Rules of Pleading), 9 (Pleading Special Matters), 10(b) and (c) (Form of Pleadings), 12(a) and (h) (When Defenses Presented; Waiver), 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 16.1 (Complex Actions), 17 (Parties), 19 (Joinder of Persons), 20 (Permissive Joinder), 21 (Misjoinder and Nonjoinder), 22 (Interpleader), 23 (Class Actions), 23.1 (Shareholder Derivative Actions), 23.2 (Unincorporated Associations), 25 (Substitution of Parties), 31 (Depositions Upon Written Questions), 38 and 39 (Trial by Jury), 40(a) and (b) (Calendar), 41(b)(1), (c) and (d) (Involuntary Dismissal on Court’s Motion; Dismissal of Counterclaim; Costs), 45 (Subpoenas), 47, 48, 49 and 51 (Jurors; Jury Trials), 50 (Judgment As a Matter of Law in Actions Tried by a Jury; Alternative Motions for New Trial; Conditional Rulings), 53 (Masters), 54 (Judgment; Costs), 55 (Default), 56 (Summary Judgment), 57 (Declaratory Judgments), 62 (Stays), 64 (Replevin), 65 (Injunctions), 65.1 (Security), 66 (Receivers), 67 (Deposit In Court), 68 (Offer of Judgment), 69 (Execution), 70 (Judgment for Specific Acts), 72 (Probate Appeals), 73 (Small Claims Appeals), 74 and 75 (Appeals from Governmental Agencies), 78(a) (Motion Days), 79(b) (Judgment Book), 79.1 (Appearance and Withdrawal of Attorneys), 79.2 (Recording Court Proceedings), 80.1 (Mortgage Foreclosure), 80.2 (Naturalization), 80.4 (Habeas Corpus), 80.5 (Civil License Suspensions and DWI Penalties), 80.6 (Judicial Bureau Procedures), 80.7 (Immoblization or Forefeiture Procedures), 80.8 (Transfer from District Court), 80.9 (Municipal Parking Violations), and 80.10 (Stalking or Sexual Assault Orders), 81(a)-(c) (Applicability of Rules to Specified Actions; Terminology), 85 (Title), 86 (Effective Date).
(3)Rules Modified. The following Vermont Rules of Civil Procedure shall apply to the extent set forth in this paragraph: Rule 4 shall apply subject to 33 V.S.A. §§ 5311, 5312. Rule 12(b)-(g) shall be subject to subdivision (d) of this rule. Rules 15, 16 and 16.2 shall be subject to subdivision (d) of this rule. In addition, the pretrial conference shall be entitled a pretrial hearing, which shall be held within 14 days of the preliminary hearing; and, absent a showing of good cause, pretrial motions must be filed at or before the pretrial hearing. Rules 26-37 shall apply subject to subdivisions (d), (f) and (g) of this rule. Rule 40(c), (d) and (e) shall apply subject to subdivision (b) of this rule. Rule 43 shall apply subject to 33 V.S.A. § 5110. Rule 58 shall apply except that, although a judgment need not be set forth on a separate document, it is effective only when it is in writing, signed by the judge, and entered as provided in Rule 79(a). Rule 78(b) shall apply, but memoranda in opposition shall be filed within 7 days unless otherwise ordered by the court. Vermont Rule of Criminal Procedure 17 shall govern the issuance of subpoenas.
(b) Petition; Submission of Jurisdictional Facts; Scheduling.

(1)Petition. A proceeding under this rule shall be commenced by a petition as provided under Chapter 53 of Title 33 of the Vermont Statutes Annotated.
(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 parties to the proceeding 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 53 of Title 33 of the Vermont Statutes Annotated, a motion under §§ 5113 or 5115 of Title 33, 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 a 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 at the temporary care hearing or 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 shall be appointed for the child at the hearing. A party’s denial shall be entered to the allegations of the petition unless that party enters an admission.
(d)Scheduling; Discovery.

(1)Preliminary Hearing. At the preliminary hearing, unless an admission from each party is accepted by the court, the court shall schedule a pretrial hearing or a hearing on the merits.
(2)Discovery. 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 each party shall file and respond to interrogatories, complete depositions, inspect or photocopy records of the Family Services Division of the Department for Children and Families, and:

(A) disclose to any other party the names and addresses of all witnesses known to have information relevant to the allegations of the petition;
(B) disclose to any other party the names and addresses of all witnesses whom the party intends to call as witnesses at any hearing and permit any other party to inspect and photocopy their relevant written or recorded statements within the party’s possession or control;
(C) disclose to any other party and permit any other party to inspect, copy or photograph the following material or information within the party’s possession, custody or control:

(i) any reports or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which the party intends to use at any hearing;
(ii) any books, papers, documents, photographs (including motion pictures and video tapes), tangible objects, buildings or places or copies of portions thereof, which the party intends to use in any hearing.
(3)Interrogatories. Interrogatories shall not be allowed except on court order, where no other means of pretrial discovery is reasonably practical, and under such conditions as the court may impose, including limits on the number of questions and specifications as to who shall answer and the time in which to answer.
(4)Scheduling of Pretrial Hearings and Motions Hearings. The court shall schedule a pretrial hearing within 14 days of the temporary care or preliminary hearing. The court may schedule a motions hearing at any time.
(5)Depositions. Except as set forth in this rule, Vermont Rule of Civil Procedure 30 shall govern the taking of depositions. Depositions may be taken without leave of the court prior to the date set by the court at the preliminary hearing for completion of depositions, if a date was set, or if no date was set, the date of the pretrial hearing or merits hearing scheduled at the preliminary hearing. Notice of deposition may be oral or written, and need not be provided 14 days in advance of the deposition so long as reasonable notice is given, which in no case shall be less than 48 hours. However, no deposition shall be taken of a minor unless the court orders the deposition, under such conditions as the court may order, on the ground that the deposition would further the purposes of Chapter 53 of Title 33 of the Vermont Statutes Annotated.
(6)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 Civil Procedure 26(c), 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.

(1) A pretrial hearing shall be held prior to the merits hearing.
(2) All parties shall attend each pretrial hearing, unless otherwise ordered by the court.
(f) Parties and Participants Not Specified By Statute.

(1)Generally. When the court determines that a person is a proper or necessary party pursuant to 33 V.S.A. § 5102(22)(F), but is not a party specifically listed in that section, the court may place limits on that person’s participation and may condition participation upon prompt compliance with such discovery as the court specifies.
(2)Notice to Caregivers.

(A) Notice of a permanency hearing held in connection with a proceeding under Chapter 53 of Title 33 of the Vermont Statutes Annotated on a petition alleging that a child is in need of care or supervision must be provided to the current caregiver of the child, 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. § 5316 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. Vermont Rule of Civil Procedure 35, except subdivision (b)(2), governs requests for physical and mental examinations. 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 information acquired in the course of such examination shall be used, directly or indirectly, to incriminate the person being examined.

Vt. R. Fam. Proc. 2

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended 1993, No. 232 (Adj. Sess.), §38, eff. March 15, 1995; June 27, 1996, eff. Sept. 1, 1996; Jan. 27, 2000, eff. May 1, 2000; Nov. 26, 2002, eff. Nov. 26, 2002; June 22, 2007, eff. July 1, 2007; Dec. 17, 2008, eff. Jan. 1, 2009; Feb. 24, 2010, eff. April 26, 2010; June 11, 2013, eff. Aug. 12, 2013; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendments

Rule 2 is amended to change its 15- and 10-day time periods to 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1.