Best Practices in Presenting Hearsay at Termination Hearings - October 2007

• Jurisdiction: Colorado,United States
• Citation: Vol. 36 No. 10 Pg. 63
• Pages: 63
• Publication year: 2007

36 Colo.Law. 63 Colorado Lawyer 2007.

2007, October, Pg. 63. Best Practices in Presenting Hearsay at Termination Hearings - October 2007

The Colorado Lawyer
October 2007
Vol. 36, No. 10 [Page 63]

Articles
Best Practices in Presenting Hearsay at Termination Hearings
by Lynn W. Lehmann

About the Author:

Lynn W. Lehmann retired as the Supervising Attorney Human Services Section, Denver City Attorney's Office after seventeen years. He actively worked on the Colorado Children's Code for more than three decades - lwl@estreet.com.

This article discusses the emerging impact of the state and federal due process clauses on the use of hearsay at termination hearings and what best practices dictates on the use of hearsay.

This article discusses a largely unused approach to presenting evidence at hearings concerning termination of parental rights. Termination reports that focus on the needs of the child and other evidence that does not heavily rely on hearsay may be persuasive to the court and avoid violating the respondent parents' due process rights.

Focusing on the Child

The customary approach in presenting evidence at termination hearings is to start with the adjudication, then the treatment plan approved by the court, and to assess whether the parent has reasonably complied with the plan. The court then considers whether the plan has been successful. The court then looks at whether the parent is "unfit" and, if so, whether the conduct or condition of the parent is unlikely to change within a reasonable time. If the court determines that the plan has been successful, it then looks at the parent to try to discern her or his conduct or behavior and intentions. This method follows the statutory underpinnings for termination of parental rights(fn1); however, another approach is available.

Even though focusing on the child first and foremost may be a less-used approach in presenting evidence at termination hearings, this approach has strong legislative backing. For example, the Colorado Children's Code(fn2) mandates that the court give primary consideration to the physical, mental, and emotional conditions and needs of the child.

Needs of the Child

Evidence that describes the child's physical, mental, and emotional conditions could be used by the court to determine the child's needs. Relevant factors include the child's age; need for safety, shelter, clothing, and education; developmental stage of the child; and any special characteristics, especially relating to attachment, structure, consistency of visitation, and need...