§ 5255. Temporary care hearing

(a) A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title. State holidays shall be excluded from the computation of 72 hours. If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the Court an affidavit so showing, the Court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b) If the State's Attorney is seeking a temporary care order, the State's Attorney shall file a petition on or before the temporary care hearing. If the State's Attorney elects not to file a petition, the State's Attorney shall so notify the Court, and the Court shall vacate any temporary orders.

(c) The following persons shall be present at the temporary care hearing:

(1) the child;

(2) the child's custodial parent, guardian, or custodian, unless he or she cannot be located or fails to appear in response to notice;

(3) the child's guardian ad litem;

(4) an attorney for the child;

(5) an attorney for the custodial parent, if requested;

(6) a representative of the Department;

(7) the State's Attorney.

(d) A noncustodial parent and his or her attorney shall have the right to be present at the hearing. The hearing shall not be delayed by reason of the inability of the Department to locate the noncustodial parent.

(e) The Department shall provide the following information to the Court at the hearing:

(1) Any reasons for the child's removal which are not set forth in the affidavit required pursuant to section 5252 of this title.

(2) Services, if any, provided to the child and the family in an effort to prevent removal.

(3) The need, if any, for continued custody of the child with the Department pending a hearing to adjudicate the merits of the petition.

(4) Services which could facilitate the return of the child to the custody of the parent or guardian.

(5)(A) The identity of a noncustodial parent and any relatives known to the Department who may be suitable, willing, and available to assume temporary custody of the child.

(B) With respect to any person whom the Department identifies pursuant to this subdivision, the Department shall conduct an assessment of the suitability of the person to care for the child. The assessment shall include consideration of the person's ability to care for the child's needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person's home. The Court may continue the hearing if necessary to permit the Department to complete the assessment.

(C) The Department shall request from the Vermont Crime Information Center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision. The request shall be in writing and shall be accompanied by a release signed by the person. The Department through the Vermont Crime Information Center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed. If no disqualifying record is identified at the state level, the Department through the Vermont Crime Information Center shall request from the Federal Bureau of Investigation (FBI) a National Criminal History Record Check of the person's criminal history. The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont Crime Information Center. The Vermont Crime Information Center shall send the Department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the Department that no record exists. The Department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont Crime Information Center. Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

(6) Additional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act pursuant to 15 V.S.A. chapter 20 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq.

(f) All parties shall have the right to present evidence on their own behalf and examine witnesses. Hearsay, to the extent it is deemed relevant and reliable by the Court, shall be admissible. The Court may in its discretion limit testimony and evidence to only that which goes to the issues of removal, custody, and the child's welfare.

(g) The temporary care hearing shall also be a preliminary hearing on the petition. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2013, No. 119 (Adj. Sess.), § 18.)