Chapter 9 The Adjudicatory Hearing
| Library | Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.) |
Darice Good-Dworak and Diana Rugh Johnson
9.01 Introduction and Overview: The Nature of the Adjudicatory Hearing
Although adjudicatory hearings (or trials) are not the way most dependency cases are resolved, lawyers representing parents must be confident that they can perform well in such hearings. Although most cases settle, parents' lawyers can better negotiate for a settlement when they are comfortable participating in a trial. Lawyers can convince themselves (and then their clients) that a particular settlement is good. But sometimes, lawyers regard a settlement as good because they are afraid of going to trial. When that fear is based on the merits of the case and the lawyer's assessment that the trial is unwinnable, all is fine. But when lawyers conclude the risk of going to trial is high because of their lack confidence as trial lawyers, lawyers are doing their clients a great disservice.
This chapter is written for both the novice and seasoned trial lawyer. As will be explained, the two most important ingredients for successful trial practice are careful preparation and developing a successful theory of the case. Respondents in dependency proceedings deserve lawyers who are willing to go to trial if necessary.
9.02 Influencing and Changing the Culture of a Non-Adversarial System
Across the country, courts that handle child welfare cases expect non-adversarial practice in which attorneys for the various parties always resolve the allegations in the Petition without contesting the charges and, almost always, on terms favorable to the state. In these courts, practice is exceedingly relaxed and informal. Such an atmosphere may work well for agencies and courts, but in some instances will not serve the interests of parents, who face the potential permanent loss of their children. Often, a parent's best defense to the charges requires contesting the charges in a trial. When this is the case, counsel must work toward shifting the court atmosphere from one that may be too informal to a more respectful, formal setting. Striving to accomplish this even before the trial begins will often facilitate the creation of the ideal atmosphere for successful trials.
Among the steps parents' attorneys may take to increase the formality of the process is to pay careful attention to dressing appropriately, similar to how counsel would dress in federal court or any court in which the parties are respected as important members of the community. Counsel may also consider advising clients how to dress for court and might want to maintain a clothing closet at the office that clients may wear for their court appearance when, as a result of poverty, they lack suitable clothing. A small lightweight wrap and belt is easy for attorneys to carry in their briefcase and use when a parent comes to court inappropriately dressed.
Counsel should also focus on how parties are addressed. Everyone should address each other formally and by last name. In courts where common practice is to refer to parents as "mother," "father," or by their first name, counsel should object to the practice and request that clients be treated with the same dignity and respect that is accorded parties in the most important courts in the country. Changing the culture in this way not only enhances respectful treatment of parents, but also helps create an atmosphere more conducive to conducting fair trials, the ultimate focus of this chapter.
9.03 Developing the Theory of the Case
Preparation for trial is crucial to successful outcomes. Less obvious, perhaps, is the central role counsel's theory plays in trial preparation. Without having developed a coherent theory of the case (which commonly includes multiple theories, but will be referred to throughout this chapter in the singular) trial preparation is difficult. After having developed it; however, and after the investigation has been completed, the crucial work is still left to be done.
From the case theory comes everything else: the evidence themes for witnesses, an assessment of what evidence will be helpful to the defense, what evidence will be harmful, and what evidence is irrelevant to the case theory. The theory of the case should be well-framed before counsel develops his or her exhibit list, organizes the evidence, and drafts examinations of witnesses developed to support the theory.
An important aspect of case preparation is carefully researching the substantive law that will control the legal issues. Often, counsel's strongest claim will be that the facts are insufficient as a matter of law to constitute neglect, abuse, or dependency. Thorough knowledge of controlling case law is essential in developing any defense.
Counsel must begin by thoroughly reviewing the Petition. Counsel should make a short list of each allegation in the Petition. This list allows counsel to filter through evidence and decide what needs to be admitted and what should be excluded. Moreover, the list also helps to formulate a theory of the case. See the following case example as illustration.
Child is removed at the end of May. She is removed for unstable housing, lack of food, and the parent's mental health issues. Parent and child moved three times in the last year. Child is not school age. When the Agency went to the parent's house at the end of May, there was very little food in the home. The parent is diagnosed with depression and refills her prescriptions late each month, so she has a few days at the end of the month that she goes without medications.
(1) Unstable housing
(2) Lack of food
(3) Mental health issues
After creating the list of allegations, counsel should make two columns besides each allegation. One column is for the Agency's evidence and the other for the parent's.
| Allegation | Agency | Parent |
| Unstable Housing | Three apartments in one year | • Child always had a roof. |
| • No evidence that three moves affected welfare of child. | ||
| Lack of Food | Very little food when Agency went to home | • Agency only visited once. |
| • Food runs low at end of month because Mother only gets paid the first of each month. | ||
| • Receipts of groceries each month. | ||
| • No evidence child is malnourished or hungry. |
After completing the list, patterns in the allegations emerge. In the above example, there are at least two patterns. The first is the impact of the parent's poverty on the family. The second is the lack of evidence of harm to the child. From these patterns, two possible theories emerge. The theory can range from one word, to a short phrase, a sentence or a paragraph. The first possible theory is poverty. Poverty is not dependency; despite being poor, the parent cares for her child and there is no evidence that the child is harmed. The theory can take a serious, funny, or aggressive tone. The importance is to create something that triggers what the case is all about and something that sticks with counsel throughout the litigation.
It is also important to develop a case theory that has similar facts to the parent's story and ends with the outcome the parent wants. The parent's attorney can then prepare the parent's story and use it in closing argument.
The theory of the case should trickle down to the evidence presented. Counsel should identify each piece of evidence (testimony and documents) expected to be admitted at trial, regardless of which party will be introducing it. For each witness and document, counsel should determine how the witness supports the theory.
In the above example, the case manager's testimony will be vital. To support the parent's theory of the case, counsel will want to elicit the following testimony from the case manager. Whenever case manager visited the home, the child was properly nourished; the parent had receipts for recently purchased groceries; the apartment was safe and adequate for the child's needs; the parent was taking her medications. The theme of this witness's testimony, in counsel's mind, might be grouped into one of two categories: "no case," meaning the testimony shows there is no issue of dependency, or "good mother," meaning the evidence shows that the parent cares for the child and there is no harm to the child.
9.04 Pretrial Conferences
Depending upon the jurisdiction, the court may require a pretrial conference. Such conferences commonly address dates and timelines for the exchange of discovery, pretrial motions and trial-related issues, including a discussion of the issues to be tried and the trial's expected length. These conferences are also where evidentiary issues may be raised and resolved, including the possible stipulation to particular facts and the admission of evidence. Counsel should always consider using stipulations to reduce the trial's length and to help focus the court on the contested issues at the trial (which, invariably, are the issues on which cases win or lose). Judges appreciate lawyers who work hard not to waste the court's time.
When lawyers have a good handle on the theory they wish to advance at trial, often there are only a few matters that are in dispute and many matters that both sides can agree upon. Eliminating the uncontested matters from the trial helps everyone focus on the issues that will decide the outcome. Shorter trials, better focused on what is disputed, increase the possibility of successful outcomes.
9.05 Witness Preparation and Examination
Once counsel determines what evidence to present at adjudication, she must prepare for the evidence and prepare for the Agency's and child attorney's evidence. Witness testimony will include direct examination and cross-examination. Counsel must prepare each witness for both. Even when counsel does not plan to call the parent, counsel should prepare the parent for possible witness examination because the Agency may call him or her.
Counsel must meet with the parent to discuss the case theory and what testimony is...
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