Witnesses urge statutory clarity for standby guardianships to keep children with trusted caregivers during immigration enforcement

Jill Martin Diaz, executive director of the Vermont Asylum Assistance Project, and Barb McCrine, a staff attorney with Vermont Legal Aid, told the Senate Judiciary Committee on April 1 that state statutes clarifying courts’ authority to accept standby‑guardianship filings would prevent unnecessary foster‑care placements when parents are detained by immigration authorities.

Martin Diaz said standby guardianship statutes exist in many states and enable families to plan in advance so that, if a parent is detained or otherwise unable to care for a child, a designated caregiver can file a guardianship or implement a previously prepared plan. “This bill allows families to plan proactively now in times of calm,” Martin Diaz said, describing school personnel and neighbors who often call legal services after a parent is detained.

Barb McCrine described Vermont Legal Aid’s clinics and volunteer network created to prepare standby guardianship paperwork in advance. She said the program has trained 25 volunteer attorneys, has 20 active attorneys statewide, has held three clinics and assisted 35 families, with 23 families currently on a waiting list. McCrine told the committee that judges sometimes disagree about whether paperwork completed months earlier can be filed later when a parent is detained, and that a clear statutory path would reassure courts and protect children from long institutional placements.

Both witnesses discussed a proposed definition in the draft bill of “adverse immigration action” and recommended an expansive but clear definition so judges understand the scope of the statute and are comfortable exercising jurisdiction. Martin Diaz noted that immigration enforcement takes many forms — detention by DHS, DOJ criminal prosecutions, denials of entry — and that courts have been reluctant to make findings that could touch on federal immigration matters without explicit legislative direction. She said the committee’s proposed language aligns with options other states have used to clarify jurisdiction for standby guardianship statutes.

Committee members asked technical questions about specific draft language and operational details. McCrine identified three suggested edits she had provided in written testimony: remove or revise a custodial‑parent definition that can be unworkable for some families, delete an unnecessary conditional consent sentence, and change phrasing to state that parents “are creating” rather than “intend to create” a standby guardianship when filling out the clinic form. She said the clinics retain completed paperwork so it can be filed promptly if a parent is detained.

Witnesses and legal advocates described the broader goal as avoiding the trauma and disruption to children that can follow DCF custody: “The least‑restrictive setting is always going to be the most appropriate and least harmful for kids in care,” Martin Diaz said, noting cultural and linguistic continuity concerns when children of color or children with limited English are placed outside their communities.

The committee did not take a formal vote during the hearing; witnesses offered to provide recommended edits and to return with technical clarifications as the bill is revised.

Standby‑guardianship provision in combined H.98/S.95: testimony and technical edits discussed; no formal vote recorded.