Vermont

STATE PROFILE

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Juvenile Indigent Delivery Defense System

• State-funded Office of the Defender General that provides representation in adjudications and appeals through regional staff attorneys, contract public defenders and assigned counsel contract attorneys. 13 V.S.A. §§ 5251-5259 and  13 V.S.A.  §§ 5271-5277.

Determination of Indigence

• Determination is made by an officer of the presiding court, and can be appealed by the defendant, the state or the public defender. 13 V.S.A. §§ 5236-5238.
• A person is presumed indigent if he/she received public assistance or earns less than the federal poverty level.
• No special provision governs the determination of indigence for juveniles. Vt. Sup. Ct. Admin. Order §5
• There is no requirement for there to be a determination of indigence for any child or youth who is the subjects of either a “Child in Need of Care or Supervision” petition or a delinquency petition in the Family Division. The child or youth is automatically assigned counsel under Vermont Rule for Family Proceedings 6(b).
  

Ages of Juvenile Court Jurisdiction

• The youngest age at which a juvenile can be adjudicated delinquent is 10 years old as Vermont is a common law jurisdiction. 33 V.S.A. § 5102(2)(C). The only exception is that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder, as defined by statute if committed by an adult, may be subject to delinquency proceedings. 33 V.S.A. § 5102 (2)(C)(iii).
• A juvenile who commits a crime after attaining the age of 16 but not the age of 18 may either be  the subject of a juvenile delinquency petition filed in the Family Division (juvenile court) of the Superior Court or charged as an adult in the Criminal Division of the Superior Court at the sole discretion of the State’s Attorney (prosecutor).
• A youth who is alleged to have committed a criminal act prior to the age of 18 may be charged in a Criminal Division (adult court) and, upon motion, either have their case transferred down from Criminal Division to Family Division under 33 V.S.A. § 5203 (c) or be granted youthful offender status and have the case transferred down to Family Division after entering a plea in Criminal Division. 33 V.S.A. §§ 5281- 5284.

Right to Counsel Provision

• In a juvenile case in Family Division, Vermont Rule for Family Proceedings Rule 6 mandates that the court shall assign counsel pursuant to  Administrative order No. 32 to represent the minor unless the counsel has been retained by that person, which would ordinarily mean by the minor’s parents in a delinquency action.

Waiver of Counsel Provision

• For any constitutional right, a child’s waiver is only valid if (A) there is a factual and legal basis for the waiver; (B) the attorney has investigated the relevant facts and law, consulted with the client and guardian ad litem and the guardian ad litem has consulted with the ward; (C) that the waiver or admission is in the best interest of the ward; and (D) that the waiver or admission is being entered into knowingly and voluntarily by the ward and also by the guardian ad litem. V.R.F.P. Rule 6 (d)(3).
• V.R.F.P. Rule 6 (d)(4) states that a person who has not attained the age of thirteen shall be rebuttably presumed to be incapable of understanding the nature and consequences of the waiver or admission; a person thirteen years old or older shall rebuttably be presumed to be capable.

Detention Statutes

• A judge may issue an emergency care order placing a child in the custody of the Department for Families and Children and ordering placement of the child in a juvenile detention facility. 33 V.S.A. § 5253(a).
• If counsel for the child has not already been assigned, counsel will be assigned prior to the temporary care hearing. V.R.F.P. Rule 6(b).
• At the temporary care hearing which must take place within 72 hours, excluding State holidays, of the issuance of an emergency care order, the court may order placement in a juvenile detention facility upon a finding that no other suitable placement is available and the child presents a risk of injury to him-or herself, to others, or to property, and the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child. 33 V.S.A. § 5307 and § 5291 (b).
• Unless ordered otherwise at or after a temporary care hearing, the Commissioner of the Department for Families and Children shall have sole authority to place the child who is in custody of the department in a secure facility for the detention of minors. 33 V.S.A. § 5291 (a).
• Alternatively, the court may order that the child be placed in a secure facility used for the detention of delinquent children for up to seven days. Any order for placement at a secure facility shall expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days. 33 V.S.A. § 5291 (b).
• The allegedly delinquent child may be returned home with conditions of release, under a conditional custody order, or placed in DCF custody in a foster home.

Disproportionate Minority Confinement

• Further information on this issue may be obtained from Vermont’s Juvenile Justice Specialist, Theresa Lay Sleeper, at Theresa.lay-sleeper@vermont.gov

Life Without Parole

• There are no youths serving life without parole sentences in the state of Vermont.
• The minimum age for prosecution as an adult is 10.
• No youths can be sentenced to life without parole. 13 V.S.A. § 7045
• Vermont has discretionary sentencing, allowing judges to choose the sentence, although there are a few specific crimes for which there is a mandatory minimum sentence.

Juvenile Competency in Delinquency Cases

• Vermont Rule for Family Proceedings 1 (i) sets forth the procedure to be employed in a Determination of Competence to be Subject to Delinquency Proceedings. 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. The rule requires a mental examination, which among other factors, shall consider the age and developmental maturity of the child, a report of the examination, a hearing at which all parties are entitled to present evidence and a determination by the court. If the court finds the youth competent, the proceeding shall continue without delay. If the court determines that the child is not competent, the court shall dismiss the petition without prejudice; provided that, if the child is found incompetent by reason of developmental disabilities or metnal retardation, the dismissal may be with prejudice. V.R.F.P. Rule 1 (i).

Important Case Law

• In re: E.T.C. , 141 Vt. 375,379 (1982), the Vermont Supreme Court held that Article 10 of the Vermont Constitution requires that a juvenile has the right to the advice and presence of a disinterested adult prior to any custodial questioning by the police:
  

  “ The following criteria must be met for a juvenile to voluntarily and intelligently waive his right against self-incrimination and right to counsel under chapter I, article 10 of the Vermont Constitution: (1) he must be given the opportunity to consult with an adult; (2) that adult must be one who is not only generally interested in the welfare of the juvenile, but completely independent from and disassociated with the prosecution, e.g. a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult must be informed and aware of the rights guaranteed to the juvenile.”

Important Vermont Resources

• Juvenile Code
• VT Courts
• Office of the Juvenile Defender, 6 Baldwin St. 4^th Floor, Montpelier, VT 05633-3301

Additional Resources

• Vermont Coalition of Runaway & Homeless Youth Programs — Montpelier, VT
  • A coalition that works to create a safety net for runaway and homeless youth through transitional living programs and counseling.
• DREAM (The Village Mentoring Organization) — Winooski, VT
  • A 501 (c)3 NGO that works to empower youth from affordable housing neighborhoods.
• Woodside Rehabilitation Center