The following is my floor report for H.98 on May 13.

Earlier this Session the House passed H.98, which established a confirmatory adoption process.  The Senate has concurred with that portion of the bill. It also amended H.98, adding provisions that establish what is referred to as Standby Guardianship.  

The language of the bill can be found on the legislative website. As a reminder, section one of H.98 establishes an expedited confirmatory adoption process for parents who conceived a child through assisted reproduction, and who are already recognized as parents under Vermont law. This process gives additional protection for parental rights when these parents travel outside of Vermont. It provides a judgment issued by a court that must be recognized by other states. The Senate made no changes to this provision that passed the House. 

The Senate’s amendment added Sections 2 through 8. These sections clarify the process for immigrant parents to create a guardianship for children in the event that the parents are subject to adverse immigration proceedings. 

Before walking through these sections, I’ll provide a bit of background. Vermont Legal Aid currently oversees an Immigrant Minor Standby Guardianship Project. The project helps immigrant parents make a plan for who will care for their children if the parents cannot do so because they have been arrested or detained by immigration authorities. The project connects immigrant parents with legal representation. The attorneys meet with parents and proposed guardians to fill out Powers of Attorney and minor guardianship documents, which can subsequently be used in a petition to the court to create the guardianship.

So, what happens if a parent is arrested or detained by U.S. Immigration and Customs Enforcement (ICE). There is an ICE directive that addresses this situation. Madam Speaker, may I read from that directive? 

“ICE personnel should accommodate a Covered Individual’s efforts to make alternative care arrangements for their minor children . . . prior to their arrest or detention. . . If the Covered Individual cannot make an alternative care arrangement for the minor children at the time of arrest, . . . ICE personnel must contact the local child welfare authority or law enforcement agency to take custody of the minor children.”  End quote.

Presumably, under this directive, ICE would accommodate the plan that an undocumented parent has put together with the help of Vermont Legal Aid, and would facilitate placing the children in the alternative care arrangement. If for whatever reason ICE does not accommodate any care arrangements prior to arrest or detention, the Vermont Department of Children and Families would likely become involved.

In that case, DCF has an operating agreement with Vermont Legal Aid (or VLA). Madam Speaker, may I read from that agreement?

“DCF and VLA believe that the well-being of children of immigrant parents who have been detained by U.S. Immigration and Customs Enforcement (ICE) is best promoted through efforts to establish safe and appropriate legal guardianship arrangements with people already known to the children whenever possible. DCF and Vermont Legal Aid are making this agreement to honor the intent of immigrant parents to establish powers of attorney and minor guardianships for their children whenever possible.” End quote.

Under the agreement, when DCF learns of children of parents who have been detained by ICE, DCF will contact Vermont Legal Aid. If there has been minor guardianship and power of attorney paperwork prepared for the family. and there is no concern regarding the safety of the children, DCF will coordinate with Homeland Security, Border Patrol, or local law enforcement, as well as Vermont Legal Aid to unite the children with their proposed standby guardian.

One way or another, either directly by ICE or through DCF, the children could be united with the proposed standby guardian where one has been arranged ahead of time. 

What if the parents have not made arrangements for alternative care ahead of time and they face arrest or detention? Again, under ICE policy, the parents may, at the time of their arrest, try to make an alternative care arrangement for their minor children. If the parents are unable to make alternative care arrangements on such short notice, the child would likely end up in DCF custody. Making these arrangements earlier allows the parents to communicate with potential guardians in a non-urgent context and avoid the many downsides of DCF custody, which I will explain later.

In any event, to make the proposed guardianship official, the parent or their representative must petition the court. And that is where H.98 comes in. The bill clarifies the court process to create a so-called “Standby guardianship.”

Back to a section-by-section explanation of the bill.

Section 2 of the bill provides various definitions. Subdivision (8) defines “Standby guardianship” as “a consensual guardianship agreement between the custodial parent and their chosen guardian . . . in which the custodial parent has been subject to an adverse immigration action that has rendered the parent unavailable to care for their child.” Subdivision (9) defines “Adverse immigration action.” This subdivision provides six different situations in which a custodial parent could be rendered unavailable to care for their child due to either deportation, detention, or denial of entry.

Section 3 begins by amending Title 14 VSA 2623 to differentiate between petitions for regular guardianship and standby guardianship, and when it is an emergency petition. 

This section establishes requirements for the information to be included in the petition, such as the proposed guardian’s relationship to the child, names of other household members, why the guardianship is being sought, and several other important factors that a court shall take into consideration when determining whether or not to grant a guardianship. 

This section also requires notice of service to all parties involved, although there are exceptions. The court may waive notice requirements if the identity or location of the parent is unknown, if the parent is detained as a result of an adverse immigration action, or if no contact can be made with the parents after reasonable efforts have been made. If the factors involved in this exception change, the court must reopen the proceeding at the request of a parent of the child who did not receive notice. 

Section 4 concerns the hearing that must be held before a guardianship petition is granted. Under current law, subsection F permits the court to delay a hearing until after an emergency petition is filed if the parents are unavailable because they are medically incapacitated or deceased. This bill also permits the courts to grant an emergency petition for a standby guardianship if the custodial parent has been subject to an adverse immigration action that renders the parent unavailable to care for the child. 

Section 5 describes the procedures for obtaining a standby guardianship. The custodial parent and the proposed guardian can sign the petition and other required forms in advance, so that the guardian or the parent’s attorney can retain the signed forms and only file them with the court if the parent is subject to an adverse immigration action. 

In summary, subsections A through F provide rules related to submitting consent forms by the custodial parent, the numerous requirements that must be agreed to between parents and potential guardians, the manner in which the Vermont Rules of Evidence shall apply, the threshold of evidence needed to grant a petition, a rebuttable presumption that the guardianship is in the best interest of the child so long as certain factors are established, and the required timelines for both holding a hearing and issuing a guardianship if granted. 

Section 6 adds standby guardianships to the list of guardianship orders that may be issued by the Probate Division. The order must include provisions addressing the guardian’s powers and duties, the expected duration of the guardianship (if known), a family plan consistent with the parties’ agreement, and the process for reviewing the order.

If a standby guardianship is granted due to an adverse immigration action, the custodial parent may be detained in a federal facility or relocated outside the country. For that reason, Section 7 permits the guardian to provide status reports to the custodial parent at the parent’s last known email address, because contacting the parent by regular mail may not be feasible. 

Additionally, because the parent’s location may limit their ability to meet court procedural requirements, Section 8 permits the parent to appear remotely at continuation hearings, and permits the court to waive formatting and signing requirements for good cause shown in proceedings to terminate the guardianship.

Section 9 provides that the confirmatory adoption proceedings section of H.98 takes effect on July 1, 2025, and that the standby guardianship sections take effect on passage.

• We heard from the following witnesses:
• Legislative counsel
• The director of the Vermont Asylum Assistance Project
• An attorney from Vermont Legal Aid
• The chief superior judge
• Deputy Commissioner of the Department of Children and Families
• An alternate guardian from Bellows Falls

The vote in committee was 6-3-2.

H.98 clarifies a process that allows immigrant parents to identify trusted adults who can step in as temporary guardians if the parent is detained or deported. The parent’s children can get some comfort by knowing the person that would care for them in the event their parents are detained. This process helps ease traumatic separations or confusion in emergency situations.

It also avoids the necessity for DCF to take legal custody of the children in these situations. Under current law, some courts may grant petitions for temporary guardianships when a parent is detained or deported by ICE.  But some courts may not grant such petitions. H.98 clearly authorizes Vermont courts to approve Standby Guardianships so long as the criteria of the bill are met. H.98 provides needed clarity and consistency in our courts to help avoid unnecessary DCF custody.

And there are downsides to DCF custody in these situations. The Department’s focus is on taking care of children in abusive situations, not in situations where children are separated from their parents due to an adverse immigration action. In addition, once children have been placed in DCF legal custody, they cannot be released to an informal guardian or easily reunited with their parent in another country. 

DCF is fully supportive of H.98.

H.98 is centered on ensuring the best interests of children. It allows families some peace of mind, knowing that there is a path to put into place their plans to keep their children safe and in community care.

I ask for your support.