Rule 2.Children in Need of Care or Supervision

REPORTER'S NOTES--2022 AMENDMENT: Rule 2(a)(2) is amended to eliminate the reference to V.R.C.P. 78(a) (Motion Days), which was abrogated by order of June 7, effective August 9, 2021. Rule 2(a)(3) is amended to replace the reference to V.R.C.P. 78(b) with a reference to V.R.C.P. 7(b)(4) (Memorandum in Opposition), added by that order and embodying the provisions of former V.R.C.P. 78(b)(1) in revised form. See Reporter's Notes to 2021 amendment of V.R.C.P. 7(b) and abrogation of V.R.C.P. 78.

REPORTER'S NOTES--2021 AMENDMENT: Rule 2(a)(2) is amended for consistency with the recent amendment of V.R.C.P. 3.1 eliminating all reference to “in forma pauperis” and replacing it with “waiver of filing fee and service costs.”

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.

REPORTER'S NOTES--2013 AMENDMENT: Rule 2(b)(2) is amended to substitute references to § 1079 of the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A., ch. 20, adopted by Act 29 of 2011, § 1, for references to the similar provisions of § 1037 of the Uniform Child Custody Jurisdiction Act, former 15 V.S.A., ch. 19, repealed by Act 29 of 2011, § 8. Note that 15 V.S.A. § 1079(f) provides that “party” does not include a child in proceedings under 33 V.S.A. chs. 51 and 53.

REPORTER'S NOTES--2010 AMENDMENT: Emergency amendments to V.R.F.P. 1-3, 6, and 12 intended to implement 33 V.S.A. chapters 51-53 as enacted by Act 185 of 2007 (Adj. Sess.), effective January 1, 2009, were promulgated on December 17, 2008, effective January 1, 2009, with a direction that the Advisory Committee on Family Rules report on any comments received by September 30, 2009. No comments having been received, these amendments are now made permanent.

REPORTER'S NOTES--2009 EMERGENCY AMENDMENT: Rule 2 is amended on an emergency basis to incorporate in the rule changes made necessary by the enactment of Act No. 185 of 2007 (Adj. Sess.), which repealed 33 V.S.A. chapter 55 covering juvenile proceedings and replaced it with 33 V.S.A. chapters 51-53, effective January 1, 2009. Simultaneous amendments have been made to Rules 1, 3, 6, and 12. Most of the changes simply substitute references to appropriate sections of the newly enacted legislation. Other changes are briefly noted below. The exception for delinquency proceedings in Rule 2(a)(1) has been deleted in light of the fact that delinquency and CHINS proceedings are now covered in separate chapters 52 and 53. Rule 2(a)(2) has been updated to incorporate recent deletions from or additions to the Vermont Rules of Civil Procedure. Rule 2(a)(3), is revised to reflect the substitution of the mandatory pretrial hearing for the status conference by virtue of 33 V.S.A. § 5313(a). In Rule 2(c), “temporary care” has been substituted for “detention” to reflect new statutory terminology. See 33 V.S.A. § 5307. “Child” has been substituted for “juvenile,” or added, in this subdivision and elsewhere for consistency with usage in the former and present statute. See 33 V.S.A. §§ 5102(2), 5112, 5312. In Rule 2(d)(1), “party” has been substituted for “defendant,” consistent with usage in the new statute. See 33 V.S.A. § 5102(22). In Rule 2(d)(2) and elsewhere, the Family Services Division of the Department for Children and Families has been substituted for the Department of Social and Rehabilitation Services, consistent with current law. See 33 V.S.A. §§ 302(2), 303. Rule 2(d) (4) has been amended to reflect the provisions of new 33 V.S.A. § 5313(a) noted above. In Rule 2(e), references to the status conference have been deleted and references to the pretrial hearing now required by 33 V.S.A. § 5313(a) have been added. The substitution of “case plan” for “report” in Rule 2(g)(1) reflects the language of new 33 V.S.A. § 5316.

REPORTER'S NOTES--2008 AMENDMENT: Rule 2(f), promulgated as an emergency amendment by order of June 1, effective June 22, 2007, is now made permanent. See Reporter's Notes, 2007 Emergency Amendment.

REPORTER'S NOTES--2007 EMERGENCY AMENDMENT: Rule 2(f) is divided into two paragraphs and paragraph (2) is added to comply with amendments to the Social Security Act, 42 U.S.C. §§ 629h(b)(1), 675(5)(G), added by P.L. 109-239, § 8(a), (b), effective October 1, 2006. Rule 2(f)(2) requires notice of permanency hearings in connection with CHINS cases. It would also implement 33 V.S.A. § 5531(b). New Rule 1(f)(3) is adopted simultaneously to apply to permanency hearings in delinquency proceedings. The provisions of the two amendments are virtually identical. For an explanation of Rule 2(f)(2), see Reporter's Notes to Rule 1(f)(3).

REPORTER'S NOTES--2002 AMENDMENT: Rule 2(a)(3) is amended, simultaneously with the addition of Rules 4(a)(3) and 9(a)(3), to modify the effect of the July 1, 2002, amendment of V.R.C.P. 58 requiring each judgment to be set forth on a separate document. Such a practice in Family Court would impose undue burdens on clerks in light of the large numbers of orders that fall within the definition of V.R.C.P. 54(a) of a judgment as “a decree and any order from which an appeal lies.” The amendment satisfies the underlying concern of amended V.R. C.P. 58 that there be a written order appropriately entered on the docket from which the time for appeal and other time periods may be calculated. See Reporter's Notes to that amendment. Under amended Rule 2(a)(3), the court may still make oral findings and conclusions, provided that the judgment is ultimately reduced to writing and entered as provided in the rule.

REPORTER'S NOTES--2000 AMENDMENT: Rule 2(a)(2) is amended to eliminate the provision making V.R.C.P. 42 inapplicable to CHINS proceedings under 33 V.S.A., Chapter 55. This change will make clear the authority of Family Court judges to order joint hearings or to consolidate proceedings under V.R.C.P. 42(a) in cases where common questions of law or fact are involved--for example, when proceedings involving siblings have been brought at different times under different docket numbers. The amendment reflects a practice that is frequently followed in Family Court without objection and extends to all contexts the requirement of 33 V.S.A. § 5531(a) for consolidation in dispositional reviews of siblings. The amendment also makes V.R.C.P. 42(b) applicable in CHINS cases. Under this provision, the court may order separate trial of any claim or issue “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” Rule 2(b) is amended to reflect the statement in In re B.C., _______ Vt. _______, _______, 726 A.2d 45, 53 (1999), where the Supreme Court noted that there was no provision in Rule 2 comparable to that in Rule 4(b)(1)(A) providing for the filing of the affidavit listing facts pertinent to jurisdiction as required by 15 V.S.A. § 1037, the Uniform Child Custody Jurisdiction Act. (Rule 4(d) requires such a filing by a defendant or any other party filing a responsive pleading.) The statute in fact requires such a filing by “each party” and, pursuant to 15 V.S.A. § 1031(3), covers custody issues in abuse and dependency proceedings, as well as in divorce. Because the statutory requirement applies to delinquency proceedings under Rule 1, as well as to CHINS proceedings under Rule 2, a simultaneous amendment has been made to Rule 1(b). Jurisdictional information is critical at an early stage in a proceeding, because of the difficulty of undoing what the court has done in a complex matter when a jurisdictional problem arises later in the proceeding. The rule, however, reflects the reality that the SRS worker at the critical and stressful early stages of a proceeding may not be able to determine and present the necessary information in a form that the state's attorney can use. Thus, an affidavit is not required to be filed with the petition. At the hearing, the parents, and any other person appearing who is “acting as a parent,” defined in 15 V.S.A. § 1031(9), must file the statutory affidavit. This approach satisfies the statutory requirement that “each party” file an affidavit, relieves the state's attorney of the burden of determining facts known only to the parties, and provides the court with the necessary information.

REPORTER'S NOTES--1996 AMENDMENT: Rule 2(a)(2) is amended for consistency with the 1995 amendment of V.R.C.P. 50 and to reflect the simultaneous promulgation of Rule 15 covering appearance and withdrawal of attorneys in Family Court actions.

REPORTER'S NOTES: This rule is adopted together with Family Rules 1 and 3. The purposes of all three rules are set forth in the Reporter's Notes accompanying Family Rule 1. This rule provides the procedure for cases in which a child is alleged to be in need of care or supervision, a term defined in 33 V.S.A. § 5502(a)(12). Subdivision (a)(1) makes applicable the Vermont Rules of Civil Procedure, except as otherwise provided in this rule. The rule clarifies a confusing body of case law. In In re T.L.S., 139 Vt. 197, 425 A.2d 96 (1980), the Court held that the juvenile court lacks authority to order a psychiatric examination. The decision does not mention Vermont Rule of Criminal Procedure 54, which was in effect in 1980 and which purported to apply the Vermont Rules of Criminal Procedure to proceedings of the juvenile court; if applicable, V.R.Cr.P. 16.1 would have authorized such an examination. See In re M.W.R., 143 Vt. 6, 458 A.2d 1132 (1983) (holding that under Criminal Rule 54(a)(2) the criminal rules apply to neglect proceedings). Nor does the decision mention In re J.M., 131 Vt. 604, 313 A.2d 30 (1973), and In re R.H., 138 Vt. 425, 415 A.2d 1318 (1980), both of which applied the civil rules to neglect petitions in juvenile court. Civil Rule 35 would have authorized such an examination. Subsequent to the T.L.S. decision the Court squarely held that the civil rules apply, notwithstanding Criminal Rule 54(a)(2) and the M.W.R. precedent. In re J.R., 147 Vt. 7, 9 n. 1, 508 A.2d 719, 721 n. 1 (1986). The J.R. decision does not mention T.L.S. The effect of J.R. is to reject both the argument that solely the statutes provide authority to the juvenile court (T.L.S.) and the argument that the criminal rules apply to neglect and other “chins” cases (M.W.R.). J.R. was later relied upon in In re R.M., 150 Vt. 59, 549 A.2d 1050 (1988). The rule codifies J.R. and R.M. The rule also modifies J.R. and R.M. by excluding or modifying certain of the civil rules. Subdivision (a)(2) lists those civil rules which do not apply. The list includes rules with no relevance and rules which would operate at cross-purposes with the statute. Subdivision (a)(3) sets forth the civil rules which are modified in their application to juvenile court. Civil Rule 4 applies but does not supersede 33 V.S.A. §§ 5519, 5520; the rule fills lacunae in the statute, such as providing a means of serving by publication. Civil Rule 12(b)-(g) applies, subject to subdivision (d) of this rule. Subdivisions (b)-(h) of Rule 12 list seven defenses which may be raised before trial, and provide for various pretrial motions. Rule 12(a) requires that an answer be filed. Rule 12(h) specifically provides that if certain defenses are not raised by motion or answer, they are waived. The effect of applying subdivisions (b)- (g) but not subdivisions (a) and (h) is to remove the obligation of filing answers and pretrial motions in order to preserve certain defenses. Respondents are given the choice of raising the listed defenses before trial or during trial. One of the purposes of these rules and the statute is to expeditiously respond to juvenile court petitions. It would frustrate this purpose were the parties forced to litigate issues under Civil Rule 12(a) and (h) before trial rather than prepare for the hearing on the merits. Civil Rules 15, 16 and 16.2, on amendment of pleadings, pretrial procedure and scheduling orders, are each made subject to subdivision (d) of this rule. Civil Rules 16 and 16.2 also are modified to provide that the civil rules' pretrial conference is to be called a status conference, the status conference may be held at any time set by the court, pretrial motions must be filed at or before the conference, and if no status conference is held pretrial motions shall be filed at or before the merits hearing or within 28 days of the preliminary hearing, whichever occurs first. The deadline for filing motions is similar to the provisions governing delinquency matters, found in Family Court Rule 1(a)(3), except that in delinquency matters the motions addressed in Criminal Rule 12(b) generally must be filed before trial or they are waived. “Chins” proceedings and civil matters generally do not involve the types of motions listed in Criminal Rule 12(b). Even those defenses which the civil rules do require be raised pretrial (either by motion or by pleading), such as lack of jurisdiction over the person, are not required to be raised pretrial under Family Court Rule 2. They may be raised before trial, but they are not waived if they are raised for the first time at trial. See the discussion of the incorporation of Civil Rule 12, above. Civil Rules 26-37, on discovery, are made subject to subdivisions (d), (f) and (g) of this rule. These provisions, discussed below, sharply limit the availability of certain types of civil discovery. Civil Rule 40(c), (d) and (e), on continuances and disqualification, apply subject to the scheduling mandates of subdivision (b) of this rule. Civil Rule 43, on evidence and trial procedure, applies subject to the confidentiality provisions of the statute. Rule 78(b) applies but is amended so that memoranda in opposition to motions must be filed within 5 days unless otherwise ordered by the court. Finally, Vermont Rule of Criminal Procedure 17 is incorporated by reference to provide the procedure for issuance of subpoenas. The civil rule on subpoenas, V.R.C.P. 45, does not apply. Subdivisions (b) and (c) are almost identical to those in Family Rule 1 and are discussed in the Reporter's Notes to that rule. It should be noted that under subdivision (b)(2) of both rules if the juvenile matter is a merits hearing it cannot be delayed without good cause. Good cause does not include routine scheduling conflicts. See the Reporter's Notes to Rule 1. Subdivision (d) governs scheduling and discovery. It is similar to Family Rule 1(d). Both are constructed to provide the juvenile court the authority it needs to ensure that merits hearings are convened and completed within a reasonable time frame. As with Rule 1(d), this rule requires the court, at the preliminary hearing, to issue an order setting the matter for a status conference or trial on the merits on a date certain. This rule also authorizes the court to issue a discovery order, setting forth deadlines within which each party must comply with all discovery allowed by this rule. Although “chins” cases are not criminal, the discovery obligations imposed upon the state in criminal cases have been adopted and applied to all parties in addition to the usual modes of civil discovery. The emphasis is on rapid and consistently complete disclosure of materials listed in the rule, as opposed to the civil mode in which the parties themselves make requests which the court often must rule upon. The rule consists of a reiteration of the substance of the discovery obligations found in V.R.Cr.P. 16. In those cases in which a discovery order is not issued, the parties will be expected to complete discovery prior to the status conference or merits hearing assigned at the detention hearing. Subdivision (d)(3) prohibits interrogatories, except upon court order where no other means of discovery would be practical and under such conditions as the court may impose. Among the conditions listed are the time in which to answer, since the general civil time period, 30 days, would frustrate the purposes of this rule. Subdivision (d)(4) authorizes the court to schedule a status conference at any time, whether or not a status conference was scheduled at the preliminary hearing and regardless of whether another status conference already has been held. Whenever the first status conference is held, that date will be the deadline under (a)(3) for the filing of motions, unless good cause is shown. Subdivision (d)(3) also provides that the court may schedule hearings on motions at any time. Subdivision (d)(5) governs depositions. Except as noted below, depositions may be taken without leave of the court. Ten days notice, required by the civil rules, is not needed so long as the notice provided is at least 48 hours and is reasonable. The notice may be oral or written. Depositions do require leave of the court if sought to be taken after the date set by the court at the preliminary hearing for completion of depositions. If no date was set at the preliminary hearing, permission will be needed for any deposition to be taken after the date of the status conference or merits hearing scheduled at the preliminary hearing. Depositions, however, are not allowed of all witnesses. The difficulty of scheduling depositions for busy lawyers as well as witnesses has been one of the major causes of delay in these proceedings. Depositions also may traumatize children who are being deposed. Compare V.R.Cr.P. 15(f)(2) (restricting depositions in criminal cases of children under age 16). The present rule strikes a balance between the needs of the parties and the needs of children by prohibiting the depositions of minor children absent a court order. The prohibition applies to witnesses who are children as well as victims who are children. The court should authorize the deposition of a minor child, according to the rule, only if the deposition would further the purposes of Chapter 55. See 33 V.S.A. § 5501 (setting forth purposes of Chapter 55). Paragraph (6) of subdivision (d) is identical to the delinquency rule on S.R.S. records, except that protective orders should be filed under Civil Rule 26(c) rather than the criminal rules. Subdivision (e) is identical to the same subdivision of Rule 1. Subdivision (f) is similar to subdivision (f) of Rule 1. See Reporter's Notes--Family Court Rule 1. However, this subdivision applies only to the class of persons not specifically listed as parties in 33 V.S.A. § 5519 and yet found to be “proper or necessary” parties. See In re M.C.P., 153 Vt. 275, 303, 571 A.2d 627, 642 (1989) (brother of child). The rule allows the court to limit and control the extent of participation by such parties. Subdivision (g), on disposition information, is identical to delinquency rule (g). Subdivision (h) incorporates most of Civil Rule 35 on physical and mental examinations. The timing of requests for examinations should be addressed in the court's discovery order, if one is issued. The judge will rule upon the request, select the person or persons to make the examination, if any, and include a date by which a report must be filed and served. Because the facts of a “chins” case not infrequently could provide the basis for a criminal prosecution of an adult (and occasionally of another child), the rule creates a necessary, constitutional rule of exclusion: no communications obtained in the course of a court-ordered examination shall be used, directly or indirectly, to incriminate the person being examined. Information the state may wish to develop for a criminal prosecution must be developed according to the statutes and rules governing criminal cases, not by means of a “chins” proceeding. Subdivision (b)(2) of Civil Rule 35 provides that when a person who had been the subject of an examination under Rule 35 requests and obtains a copy of the examining expert's report, or takes the deposition of an examining expert, that person is deemed to have waived “the physician-patient privilege as to the condition in question in its entirety.” Reporter's Notes, Rule 35--1975 Amendment. This is the federal rule. In juvenile court proceedings, this type of waiver often would render a patient's entire physical or mental health history an open book. The purpose underlying adoption of this subdivision of Rule 2, authorizing mental and physical examinations, is to encourage use of expert testimony to assist the juvenile court in its decisionmaking without discouraging litigants and potential litigants from seeking the help of therapists and physicians for treatment. Therefore, this subdivision of Rule 2 adopts Civil Rule 35 but explicitly deletes application of Civil Rule 35(b)(2).