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 an ad hoc attorney to the case.
Vermont has no statutorily mandated 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(a); Vt. R. Fam. Pro. 6.
A youth is specifically entitled to counsel at the following stages:
- Counsel for the youth shall be appointed prior to the preliminary hearing. Vt. Stat. Ann. tit. 33, §5225(a).
- Probation previolation hearings. A hearing to determine if there is probable cause to hold the youth for a violation hearing. Vt. Stat. Ann. tit. 33, § 5267.
- Probation violation hearings (the right to legal counsel “if requested”). Vt. Stat. Ann. tit. 33, §5268.
Determination of Indigence
Vermont has a presumption that children are automatically eligible for an attorney based on their status as children, irrespective of financial status. Vt. Stat. Ann. tit. 13, §§5112(a); 5238(g), & Vt. Stat. Ann. tit. 33, § 5225(a).
Waiver of Counsel
Youth in Vermont may waive their rights 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. R. Fam. Pro. 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. R. Fam. Pro. 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. R. Fam. Pro. 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 temporary care (preliminary) hearing will be held within 72 hours, excluding state holidays, of the issuance of an emergency care order or conditional custody order. Vt. Stat. Ann. tit. 33, §5255. A temporary care hearing is a preliminary cause hearing at which probable cause is determined. Vt. Stat. Ann. tit. 33, §5221(e). Provisions for the detention of youth are found in Vt. Stat. Ann. tit. 33, §§ 5251-5258; 5291-5293, and Vt. R. Fam. Pro. 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 two 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 pre-violation hearings. Vt. Stat. Ann. tit. 33, § 5267
- Probation Violation hearings. Vt. Stat. Ann. tit. 33, § 5268
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a youth who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Vermont:
- The youngest age at which a youth can be adjudicated delinquent is 10 (except for murder, for which there is no age limit). Vt. Stat. Ann. tit. 33, § 5102(C);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 22nd birthday. Vt. Stat. Ann. tit. 33, § 5102(C); “A State’s Attorney may commence a proceeding in the Family Division of the Superior Court concerning a child who is alleged to have committed an offense after attaining 16 years of age, but not 22 years of age that could otherwise be filed in the Criminal Division.” Vt. Stat. Ann. tit. 33, §5280;
- Jurisdiction over a youth 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). Jurisdiction over a youth who has been adjudicated delinquent may be extended until six months beyond the youth’s 19th birthday if the child was 16 or 17 years of age when they committed the offense. Vt. Stat. Ann. tit. 3, § 5103(c)(2)(A).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. In Vermont, juveniles can be prosecuted as adults through:
- Discretionary transfer: The court may transfer a youth in the following circumstances: if the youth has attained 16 years of age but not 19 years of age at the time of the non-statutorily delineated felony offense or, if the youth has attained 12 years of age but not 14 and has committed a statutorily-delineated violent offense. Vt. Stat. Ann. tit. 33, § 5204.
- Statutory Exclusion: Any proceeding involving a youth alleged to have committed any of the statutorily-delineated violent offenses (specified in §5204(a)) who is 14 years of age, but not 18 years of age, shall originate in adult court. Vt. Stat. Ann. tit. 33, §5201(c).
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.