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IN RE: L.B. (1999)

Supreme Court of Vermont.


No. 98–215.

Decided: February 03, 1999



Mother appeals an order of the family court granting guardianship of her son L.B. to L.B.'s maternal grandparent.   We affirm in part and reverse in part.

On January 23, 1998, a delinquency petition was filed alleging that L.B. had assaulted his mother by throwing a Sega paddle at her.   In a March 19, 1998 order, the family court (1) found that L.B. threw a Sega paddle at his mother, injuring her;  (2) concluded that L.B. was a delinquent child;  (3) ordered temporary custody to the Department of Social and Rehabilitation Services (SRS);  and (4) ordered a disposition report.   The disposition report recommended that L.B. be placed with his grandparents.   In an April 29, 1998 order the court (1) noted that L.B. had been adjudged to be delinquent;  (2) ordered that L.B. be placed under protective supervision of SRS;  (3) ordered that guardianship go to L.B.'s maternal grandparent (with residual rights and reasonable visitation to mother);  and (4) made the order effective until L.B. reached 18 years of age.

 Mother argues on appeal that the family court lacked jurisdiction to transfer guardianship to L.B.'s grandparent in the context of the delinquency proceeding and that the court failed to make required findings that the grandparent was qualified to receive and care for L.B.   SRS concedes that 33 V.S.A. § 5529 (pertaining to disposition of delinquent child) does not contain a provision authorizing the court to transfer custody in connection with an adjudication of delinquency.   SRS argues, however, that the family court has broad authority to establish terms and conditions of juvenile probation, and that this includes the authority to transfer custody of the juvenile to an appropriate person.

If a child is found in need of care and supervision (CHINS), a court has three options under 33 V.S.A. § 5528:  it may (1) permit the child to remain with the current caregiver, (2) place a child under protective supervision, or (3) transfer legal custody to SRS, a foster group home, a qualified individual, or a child placing agency.   If a child is found to be delinquent, the court also has three options under 33 V.S.A. § 5529:  it may (1) place the child under protective supervision, (2) place the child on probation, or (3) transfer custody to SRS. Given that the Legislature specifically included the option of transferring custody to a qualified individual in the context of a CHINS proceeding, it could have easily included this option in the section pertaining to delinquency proceedings if that were its intent.   It did not, however, and we have no basis upon which to infer such intent.

 Under 33 V.S.A. § 5529(a)(1) the family court may in the context of a delinquency proceeding place a child under protective supervision, subject to conditions, and thus we allow that portion of the order to stand.   The court was without authority, however, to transfer custody in this context.

Given our disposition, we need not reach the second issue raised by mother on appeal.

Order of protective custody affirmed.   Reversed and remanded in all other respects.

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IN RE: L.B. (1999)

Docket No: No. 98–215.

Decided: February 03, 1999

Court: Supreme Court of Vermont.

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