Juvenile Indigent Defense Delivery System
Vermont provides counsel to indigent youth alleged to be delinquent or children in need of care and supervision (CHINS) through a state-funded system of public defender offices, contract attorneys, and appointed attorneys, all coordinated through the Office of the Defender General. When public defenders or contract defenders cannot represent a client due to conflicts, the court appoints a private attorney to the case. The Office of the Defender General has a Juvenile Defender’s Office that provides post-disposition representation to juveniles in state custody.
Vermont has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. Vermont’s delinquency proceedings are governed by the Vermont Rules for Family Proceedings.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In Vermont, “[t]he court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters,” unless counsel has already been retained. Vt. Stat. Ann. tit. 33, § 5112; Vt. Fam. Pro. R. 6. “Counsel shall be assigned prior to the preliminary hearing.” Vt. Fam. Pro. R. 1(c).
Counsel shall be assigned “to represent needy persons in …. proceedings arising out of a petition brought in a juvenile court when the court deems the interests of justice require representation of either the child or his or her parents or guardian or both, including any subsequent proceedings arising from an order therein.” Vt. Stat. Ann. tit. 33, § 5232.
A child is specifically entitled to counsel at the following stages:
- Probation Violation hearings. Vt. Stat. Ann. tit. 33, § 5267.
- Prior to the preliminary hearing (which occurs at the detention hearing, if one is held). Vt. Fam. Pro. R. 1.
Determination of Indigence
Vermont has no juvenile-specific provisions for determining the indigency of children in delinquency proceedings, but counsel is appointed automatically for them. Vt. Stat. Ann. tit. 33, § 5112(a). A person (non-juvenile) earning over 125% of the federal poverty level is presumed able to pay for a portion of their legal costs. Vt. Stat. Ann. tit. 13, §§ 5238(d), (g).
Waiver of Counsel
A juvenile in Vermont may waive his or her right to counsel if “the court determines, after opportunity to be heard, each of the following:
(A) That there is a factual and legal basis for the waiver or admission;
(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;
(D) That the waiver or admission is being entered into knowingly and voluntarily by the ward and also by the guardian ad litem, except as set forth in (4) below.” Vt. Fam. Pro. R. 6(d)(3).
The court may approve a waiver of counsel by the guardian ad litem without the consent of the child if the child, “because of mental or emotional disability, is unable to understand the nature and consequences of the waiver or admission or is unable to communicate with respect to the waiver or admission.” Vt. Fam. Pro. R. 6(d)(4). Children under the age of 13 are “rebuttably presumed to be incapable of understanding the nature and consequences of the waiver or admission and of communicating with respect to the waiver or admission; a person 13 years old or older shall be rebuttably presumed to be capable.” Vt. Fam. Pro. R. 6(d)(4).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Vermont, a detention hearing must occur within 48 hours of the initial order of custody, excluding weekends and holidays. Vt. Stat. Ann. tit. 33, § 5255(a). Provisions for the detention of juveniles are found in Vt. Stat. Ann. tit. 33, §§ 5254, 5255, 5256, and Vt. Fam. Pro. R. 1.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Vermont statutes list one post-disposition proceeding at which youth have a right to counsel.
In Vermont, youth have a right to counsel in the following post-disposition proceedings:
- Probation Violation hearings. Vt. Stat. Ann. tit. 33, § 5267
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Vermont:
- The youngest age at which a juvenile can be adjudicated delinquent is 10 (except for murder, for which there is no age limit), Vt. Stat. Ann. tit. 33, § 5102(C)(iii);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday, Vt. Stat. Ann. tit. 33, § 5102(C);
- Jurisdiction over a child who has been adjudicated delinquent may be extended until six months beyond the child’s 18th birthday if the offense for which the child has been adjudicated delinquent is a nonviolent misdemeanor and the child was 17 years old when he or she committed the offense. Vt. Stat. Ann. tit. 33, § 5103(c)(2)(A).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Vermont has two ways that juveniles can be prosecuted as adults:
- Discretionary Waiver, after hearing, where the juvenile is 14 and under and has committed a statutorily-delineated violent offense, or any other juvenile has committed an offense but the ones delineated in the statute. Vt. Stat. Ann. tit. 33, § 5204.
- Statutory Exclusion: for children under the age of 16 who have committed statutorily-delineated offenses. Vt. Stat. Ann. tit. 33, §§ 5103, 5204(a).
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in Vermont. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.