PRELIMINARY PROTECTIVE PROCEEDING Shelter Hearing Advisement Hearing Temporary

  • Slides: 135
Download presentation
PRELIMINARY PROTECTIVE PROCEEDING Shelter Hearing Advisement Hearing Temporary Protective Custody Hearing Detention Hearing

PRELIMINARY PROTECTIVE PROCEEDING Shelter Hearing Advisement Hearing Temporary Protective Custody Hearing Detention Hearing

Emergency Custody Law Enforcement may remove a child without a court order if the

Emergency Custody Law Enforcement may remove a child without a court order if the child is seriously endangered or seriously endangers others. The Department may remove a child with an ex parte court order, if necessary because there is a danger to the child’s life or health. The court may also issue ex parte protective orders, without removing the child.

Deciding whether to take emergency custody 7. 304. 3 Out-of-home placement criteria q In

Deciding whether to take emergency custody 7. 304. 3 Out-of-home placement criteria q In deciding whether to remove a child, the Department looks at 3 criteria. All three are required to be met prior to removal.

Criteria 1 Under Volume 7, a child can be at risk for out of

Criteria 1 Under Volume 7, a child can be at risk for out of home placement because of: q Abandonment; q Abuse/neglect; q Domestic violence; q Caretaker unable to care for child because of substance abuse, mental illness, disability, illness, homelessness; q Child beyond control of parent; q Danger to self or others; q Infant or young child of teen in placement- Note Vol. 7 (12 CCR 2509 -1) at 7. 001. 41 G: Title IV-E foster funds extend to the child of a teenage parent who is eligible for these funds. q Delinquency; q Relinquishment or termination of parent rights; q Child returning home from placement.

Criteria 2 Assess LEVEL of risk for removal (Volume 7. 202. 5) If imminent

Criteria 2 Assess LEVEL of risk for removal (Volume 7. 202. 5) If imminent then determine child/family strengths and identify appropriate services (reasonable efforts). If services are not available, are unsuccessful, or exhausted, removal may be considered.

Criteria 3 Removal appropriate when placement is best choice of available options Volume 7.

Criteria 3 Removal appropriate when placement is best choice of available options Volume 7. 304. 5 BUT must continue reasonable efforts to resolve conditions which led to imminent risk

Reasonable Efforts Identify appropriate parent/relative/caretakers Assess the parent/r/c ability to protect Ability to assist

Reasonable Efforts Identify appropriate parent/relative/caretakers Assess the parent/r/c ability to protect Ability to assist the parent/r/c in accessing services.

Preliminary Protective Proceeding (PPP) Hearing C. R. S. § 19 -3 -403; 405 When

Preliminary Protective Proceeding (PPP) Hearing C. R. S. § 19 -3 -403; 405 When the Department has taken emergency protective custody of a child, a PPP hearing is held to determine whether that custody should continue with the Department or whether the child should be returned to his or her parents.

Emergency Protective Orders If the Department did not take custody on an emergency basis,

Emergency Protective Orders If the Department did not take custody on an emergency basis, but instead sought ex parte protective orders, this hearing is held to modify or continue those orders. If the Department has not sought any ex parte orders, either custody or protection orders, this hearing is the first chance to make such requests.

Burden of Proof Department has the burden of proof. Standard for a non-Indian child

Burden of Proof Department has the burden of proof. Standard for a non-Indian child is whether the custody or protection order is appropriate and in the child’s best interests. C. R. S. § 19 -3403(3. 6)(a)(V). Any probative evidence is admissible.

Burden of Proof Under ICWA Different standard for removal for an Indian child Who

Burden of Proof Under ICWA Different standard for removal for an Indian child Who is an Indian child? Member of an Indian tribe; or Eligible for membership and is the biological child of a member.

Burden of Proof Under ICWA Standard for removal: Active Efforts Child must face serious

Burden of Proof Under ICWA Standard for removal: Active Efforts Child must face serious emotional or physical damage if left in the home Standard of proof is clear and convincing evidence Including testimony of a qualified expert witness Placement preferences if child is removed- 25 U. S. C. § 1915(b): Child’s extended family Member of child’s tribe Member of another tribe Foster care

Timing 72 hours after removal; 48 hours for police hold 72 hours after protective

Timing 72 hours after removal; 48 hours for police hold 72 hours after protective orders entered Excluding weekends and holidays NOT jurisdictional

Placement Options Preference to relatives Relative must be willing, capable, and appropriate Child’s best

Placement Options Preference to relatives Relative must be willing, capable, and appropriate Child’s best interests C. R. S. § 19 -3 -403 (3. 6) (a) (III)

Placement Options, continued Otherwise Court Considers: Child’s safety Least restrictive environment Appropriate to child’s

Placement Options, continued Otherwise Court Considers: Child’s safety Least restrictive environment Appropriate to child’s needs Near parents/community Educational needs of child Cultural considerations Family’s religious preferences Availability and costs Sibling placement 42 U. S. C. 675 (5) (A)

Relatives q How do you know if they are appropriate? q CBI and Trails/state

Relatives q How do you know if they are appropriate? q CBI and Trails/state central registry check Federal law under the ASFA, codified in Colorado, at C. R. S. § 19 -3 -406, eliminates people with certain convictions from consideration for placement. People with certain other convictions MAY be approved by the court, but it is discretionary. q Have space/provisions q Can be protective

Relatives, continued Appropriate also often means the Department approves of placement with them. q

Relatives, continued Appropriate also often means the Department approves of placement with them. q Volume 7 regulations permit emergency placement: q Kin does not have to be certified prior to placement q Placement can be done on emergency basis – “visitation basis” q Kin are eligible for supportive services, including Medicaid, child care, family preservation services, and core services to q

Relatives, continued Volume 7. 304. 2 Placement with kin can be voluntary. Kin are

Relatives, continued Volume 7. 304. 2 Placement with kin can be voluntary. Kin are entitled to foster care payment if they become licensed. q Kin are entitled to foster care payment. It is NOT a need based calculation. q If relatives do not choose to become certified, they may choose to apply for Relative TANF for public funds to help support the child. They could also ask for child support from the Department. Broad definition of “kin” q Relatives or persons with a “family like”

Defenses at PPP Volume 7 process – identify family strengths, identify needed services Emergency?

Defenses at PPP Volume 7 process – identify family strengths, identify needed services Emergency? Reasonable Efforts? Safety Plan? Placement with kin Effect of admissible hearsay

Contesting the PPP Hearing q Consider the following when deciding whether to contest the

Contesting the PPP Hearing q Consider the following when deciding whether to contest the hearing or not: q Defenses? Ask your client factual questions to determine any possible defenses q Witnesses? Ask your client to identify the presence of helpful witnesses, if any q Likelihood to prevail? Discuss with client what you believe are the chances q Placement and visitation? Discuss with client the alternatives q RPC 1. 2 - Client decides the objective of the representation, and the lawyer decides the means. Client decides whether or not to contest PPP.

Seeking Visitation Orders Reunification is dependent upon frequent and meaningful visitation. Agency office visits

Seeking Visitation Orders Reunification is dependent upon frequent and meaningful visitation. Agency office visits are the worst locations for families to visit. Ask that Department follow best practices regarding visitation. Ask client to identify someone who may be able to supervise visits outside of the Department – a friend, relative, pastor, community worker. Then ask the court to order Department to investigate this person as a visitation “host. ” If visitation at the Department is limited because of staffing

Application for Visitation Argument q C. R. S. § 19 -1 -103 (89): “

Application for Visitation Argument q C. R. S. § 19 -1 -103 (89): “ ‘Reasonable Efforts’ …. . means the exercise of diligence and care throughout the state of Colorado for children who are in out-of-home placement…. . In determining whether it is appropriate to provide, purchase, or develop the supportive and rehabilitative services that are required …to foster the safe reunification of a child with a child’s family…. . the child’s health and safety shall be the paramount concern…. ”… plus. C. R. S. § 19 -3 -208 (2)(b)(IV): “…[the] following services shall be available…visitation services for parents with children in out-of-home placement…. ”-plus 12 CCR 2509 -4 J sections 1, 2, and 6 : “…The visitation plan shall specify the frequency, type of contact, and the person(s) who will make the visit. At a minimum the plan shall provide the methods to meet…. the growth and development of the child…-plus. CDHS and Family Services Review 1/28/09: parents should be encouraged to attend doctor, physical therapy and other

Litigating the Application for a Visit Host Argue: Providing a means for your client

Litigating the Application for a Visit Host Argue: Providing a means for your client to see her children is a “reasonable effort” in support of reunification and promotes the children’s health and well being in that current minimum practice only permits the child to see her parents the equivalent of two days per year and more frequent visits that are fun, supportive and mimic family life are more likely to help the child maintain her attachments. C. R. S. § 19 -1 -103 (89) Argue: DHS is responsible for providing “visiting services” for a child separated from parents by foster care. C. R. S. § 19 -3 -08 (2)(b)(IV). Applicable regulations make clear that a visiting plan is supposed to meet the developmental needs of a child and should progress as reunification gets closer. 12 CCR 2509 -4 J sections 1, 2, and 6. Argue: CDHS has recognized that better visiting plays a key role in safe reunification, that visiting should be organized around typical parenting events , and that people outside the caseworker should be accessed to be a resource to provide more visits. Argue: Your client should not be compromised or deprived of the benefit of

Seek Orders for Services: when appropriate and client agrees: q. Referral for substance abuse

Seek Orders for Services: when appropriate and client agrees: q. Referral for substance abuse evaluation and monitoring q. Mental health evaluation and treatment Evaluations: need agreement for immunity

Admissions at PPP? Benefits Risks The rationale for this is to fast track the

Admissions at PPP? Benefits Risks The rationale for this is to fast track the case to the treatment plan phase and to provide services to the family as soon as possible, thereby speeding reunification. The risk of making an admission to not just the petition for Temporary Protective Custody, but also to the petition in dependency and neglect is the rush to prejudge the facts prior to an investigation and completing discovery. Local practice It is important to know what is typical practice in your jurisdiction, but it is just as important to make a case by case decision about what process to follow.

PPP Motions Practice Possible written motions after PPP hearing Motion for reconsideration, or motion

PPP Motions Practice Possible written motions after PPP hearing Motion for reconsideration, or motion for district court review if heard by magistrate Motion for change of placement Motion for deposition of witness Motion for discovery Motion to conduct kinship home study Motion for physical or mental examination, CRE 37 Motion to exclude evidence at trial Motion to redact hearsay within hearsay Subpoena for author of a report C. R. S. § 19 -1 -107(2)

PPP Checklist Review Before the hearing: Petition Client interview Contact information Formulate a position

PPP Checklist Review Before the hearing: Petition Client interview Contact information Formulate a position

PPP Checklist Review During the hearing : ICWA Visitation Service referrals Kinship investigations

PPP Checklist Review During the hearing : ICWA Visitation Service referrals Kinship investigations

PPP Checklist Review After the hearing q Client Appointment q Service referrals q Visitations

PPP Checklist Review After the hearing q Client Appointment q Service referrals q Visitations q Relatives q 10 Minute Networking Break

PPP Hearing Exercise- Breakout Groups Break into groups based on the sticker color on

PPP Hearing Exercise- Breakout Groups Break into groups based on the sticker color on your nametag. You will need Handout 7: D&N Intake and Handout 9: Conversations Prior to PPP Hearing

CLIENT COUNSELING AND OVERCOMING COMMUNICATION OBSTACLES Building a Healthy Child Welfare System

CLIENT COUNSELING AND OVERCOMING COMMUNICATION OBSTACLES Building a Healthy Child Welfare System

Colorado Practice Standards Colorado Standards for RPC Training Competent Representation Communication Documentation

Colorado Practice Standards Colorado Standards for RPC Training Competent Representation Communication Documentation

Colorado Practice Standards, continued Investigation: facts and timing Agency Advocacy: services and placements Client

Colorado Practice Standards, continued Investigation: facts and timing Agency Advocacy: services and placements Client Location: keeping track Cultural Awareness: impact on case success Appeals

Client Location Several sources: Federal parent locator service: http: //www. acf. hhs. gov/programs/cse/newhire (accessible

Client Location Several sources: Federal parent locator service: http: //www. acf. hhs. gov/programs/cse/newhire (accessible by DSS) Colorado Corrections: www. doc. state. co. us/oss. Need DOB or DOC number. Criminal background checks: www. cbirecords. com To find any person: www. switchboard. com ICON access at: https: //www. jbits. courts. state. co. us/pas/pubaccess /index. cfm

ABA Standards of Practice for Attorneys Representing Parents General Principle: Understand protect the parent’s

ABA Standards of Practice for Attorneys Representing Parents General Principle: Understand protect the parent’s rights to information and decision-making while the child is in foster care.

Client Communication and Counseling Introducing the client to the system: What to cover: Whether

Client Communication and Counseling Introducing the client to the system: What to cover: Whether to contest the removal Explaining process Answering questions, particularly about visits Relatives and other support Native American heritage What to save for another day Fact investigation Witnesses Health care and mental health needs Older children Religion and culture Advisement of rights: Watch for new English/Spanish video version

Client Communication and Counseling, continued Ethical Issues: q Client with disability: Rules of Professional

Client Communication and Counseling, continued Ethical Issues: q Client with disability: Rules of Professional Conduct 1. 14 See “Representing the Mentally Retarded or Disabled Parent in a Colorado Dependent or Neglected Child Action, ” 11 Colo. Law. 693 (1982). q Determining whether client has a disability: Can client make reasoned decisions? Can client appreciate consequences? Can client take positions consistent with his or her best interests? Remedial action Consult with family members. Request a GAL for parent Impact Weigh the pros and cons Signals to court that parent may not be able to parent

Relationship With The Client: Advocate for the client’s goals and empower the client to

Relationship With The Client: Advocate for the client’s goals and empower the client to direct the representation and make informed decisions based on thorough counsel. Provide the client with contact information in writing and establish a message system that allows regular attorneyclient contact.

Relationship With Client, continued Meet and communicate regularly with the client well before court

Relationship With Client, continued Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client’s rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans.

Relationship With Client, continued Work with the client to develop a case timeline and

Relationship With Client, continued Work with the client to develop a case timeline and tickler system. Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation. Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication. Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client. Be aware of the client’s mental health status and be prepared to assess whether the parent can assist with the case.

Investigation and Discovery Conduct a thorough and independent investigation at every stage of the

Investigation and Discovery Conduct a thorough and independent investigation at every stage of the proceeding. Review the child welfare agency case file. Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

ADJUDICATION HEARING Factfinding Trial

ADJUDICATION HEARING Factfinding Trial

Before the Adjudicatory Hearing Advisement hearing Often the chance to enter a denial or

Before the Adjudicatory Hearing Advisement hearing Often the chance to enter a denial or an admission to the petition Sometimes advisement hearings, or 1 st hearings, are used as control dates for return of service for noncustodial parents. Formal advisement Opportunity to make an admission RPC should very carefully weigh the advantages and disadvantages for the client to making an admission at the first hearing. Advantages include proceeding more quickly to the treatment plan and receiving services and perhaps reunifying the family faster. Disadvantages: no time for an investigation, no time to obtain records and discovery, and no time to create any

Admissions Generally Admission includes waiver of factual basis Request C. R. S. § 19

Admissions Generally Admission includes waiver of factual basis Request C. R. S. § 19 -3 -207 orders to protect client’s statements. A C. R. S. § 19 -3 -207 (2) order is a protective order that says no professional can be called to testify about anything the respondent said during treatment in a subsequent criminal proceeding. Consider seeking an interim treatment plan to obtain services as quickly as possible

Informal Adjustment When parties are before the court, But before a D & N

Informal Adjustment When parties are before the court, But before a D & N petition is filed, Court may authorize an informal adjustment Parents must be advised and are entitled to counsel Parents admit facts necessary to establish prima facie jurisdiction: the admission, however, may not be used later if a petition is filed. Informal adjustment may not last longer than 6 months. C. R. S. § 19 -3 -501

Deferred Adjudication (delayed dismissal or continued adjudication) When parties are before the court And

Deferred Adjudication (delayed dismissal or continued adjudication) When parties are before the court And a D & N petition has been filed Court may authorize deferred adjudication (delayed dismissal) Requires: Admission by parent Consent of all parties Conditions – similar to treatment plan 6 months plus 6 months Governed by C. R. S. § 19 -3 -505(5)

Admissions No fault. C. R. S. § 19 -3 -102 (1) (e): Some jurisdictions

Admissions No fault. C. R. S. § 19 -3 -102 (1) (e): Some jurisdictions routinely use “no-fault” admissions, as a way for the court to gain jurisdiction over the parties and enable the court to order a treatment plan. One parent’s no-fault admission cannot be used against the other parent. Impact: Court has jurisdiction over parties and the subject matter and can enter orders against all parties. Homelessness should not be used as the sole basis to sustain a petition of dependency.

Admissions Injurious environment C. R. S. § 19 -3 -102(1)(c) Waive or stipulate to

Admissions Injurious environment C. R. S. § 19 -3 -102(1)(c) Waive or stipulate to a factual basis: agree to address all issues in treatment Lacks proper care through acts or omissions C. R. S. § 19 -3 -102(1)(b) Beyond control of parent C. R. S. § 19 -3 -102(1)(f) Admission by one parent not enough to adjudicate against the other parent. Other parent still has a right to a trial. People in the Interest of A. M. , 786 P. 2 d 476 (Colo. App 1989).

Settlement Conference Not used in all jurisdictions Who runs it Family court facilitator or

Settlement Conference Not used in all jurisdictions Who runs it Family court facilitator or magistrate Issues Negotiated settlement Possible treatment plan Fathers Agreements Some jurisdictions allow these to be immediately entered on the record.

Pretrial Conference Pretrial issues Witness lists Jury instructions Not always a hearing: Some jurisdictions

Pretrial Conference Pretrial issues Witness lists Jury instructions Not always a hearing: Some jurisdictions use case management/trial management orders

Local Practice District Plan Required Details how to handle dependency and neglect cases, including

Local Practice District Plan Required Details how to handle dependency and neglect cases, including procedures for jury trials Where to find it http: //www. courts. state. co. us/Courts/Supreme _Court/Committees/Committee. cfm/Committe e_ID/8

Pretrial Motions for summary judgment Purpose: Moving party can avoid trial when, as a

Pretrial Motions for summary judgment Purpose: Moving party can avoid trial when, as a matter of law, no disputed facts exist and the other party cannot prevail. Court grants summary judgment when clear and convincing evidence shows no triable issue of material fact exists. C. R. C. P. 56(c) controls, except for timing Motion must include affidavit RPC must respond, with specific facts, also supported by affidavit, to survive MSJ

Pretrial Motions, continued Motions in Limine Exclude evidence at trial Exclusionary rule from criminal

Pretrial Motions, continued Motions in Limine Exclude evidence at trial Exclusionary rule from criminal law does not apply. While hearsay is admitted at many hearings (except adjudication and termination), remember that privilege may apply. Child hearsay exception: C. R. S. § 13 -25 -129 Discovery Controlled by C. R. S. § 19 -1 -307 – not C. R. C. P. 26!

Jury Trial Colorado permits jury trials for adjudication hearings - C. R. S. §

Jury Trial Colorado permits jury trials for adjudication hearings - C. R. S. § 19 -3 -202 Entitled to jury of 6 Must request when petition denied, or waived C. R. J. P. 4. 3(a) Three peremptory challenges C. R. J. P 4. 3(b) plus 1 for an alternate Challenges for Cause C. R. C. P. 47(e)

Timing Non-EPP: Within 90 days from service of the petition if child over 6

Timing Non-EPP: Within 90 days from service of the petition if child over 6 EPP: Within 60 days from service of petition if any child under 6

Burden of Proof On Department to show child is dependent or neglected Non-ICWA: By

Burden of Proof On Department to show child is dependent or neglected Non-ICWA: By a preponderance ICWA: Clear and convincing, as to certain factors, with expert testimony

Purpose of adjudication is to determine the status of the child Adjudication not made

Purpose of adjudication is to determine the status of the child Adjudication not made “as to” the parent People in Interest of P. D. S. , 669 P 2 d 627 (Colo. App. 1983) Interest and welfare of the child control. Fulton v. Martensen, 129 Colo. 125 (1954)

Causes of Action: Abuse Physical Abuse Defined at C. R. S. § 19 -1

Causes of Action: Abuse Physical Abuse Defined at C. R. S. § 19 -1 -103: Physical abuse is an injury: a) that is not justifiably explained, b) that is explained by an explanation that is at variance with the injury, or c) the circumstances surrounding the injury indicate that it was caused by non-accidental means.

Causes of Action: Abuse Sexual Abuse: Defined in the criminal code at C. R.

Causes of Action: Abuse Sexual Abuse: Defined in the criminal code at C. R. S. § 16 -22 -102(9) Emotional Abuse is defined as identifiable and substantial impairment or risk of impairment of a child’s intellectual or psychological functioning or development. The parent must have inflicted the abuse or allowed another to abuse the child. C. R. S. § 19 -1 -103 (1) (a) (IV).

Causes of Action: Neglect Abandonment When the parent leaves the child and does not

Causes of Action: Neglect Abandonment When the parent leaves the child and does not intend to parent the child for 6 months or more. Lacking Parental Care Injurious Environment Neglect: when the parent fails or refuses to provide the child w/ proper or necessary: Subsistence; Education; Medical care; or Other care necessary for child’s health, guidance, or well

Cause of Action: Neglect No fault Beyond control of parent Abused child’s sibling Evidence

Cause of Action: Neglect No fault Beyond control of parent Abused child’s sibling Evidence of abuse of one child is admissible and sufficient to sustain a petition as to another child. Prospective Neglect The theory is that past behavior is indicative of risk to the child and this is enough to sustain a petition.

Dismissal Court fails to sustain the petition Case dismissed Child released to parent Parent

Dismissal Court fails to sustain the petition Case dismissed Child released to parent Parent released from prior orders Department must expunge its records

Review Checklist Before the hearing During the hearing After the hearing

Review Checklist Before the hearing During the hearing After the hearing

Motions, Evidence, Expert Testimony Thomas L. Kennedy District Court Judge

Motions, Evidence, Expert Testimony Thomas L. Kennedy District Court Judge

JANE ALWAYS SUFFERED FROM PRETRAUMATIC STRESS DISORDER ON THE FIRST DAY OF TRIAL

JANE ALWAYS SUFFERED FROM PRETRAUMATIC STRESS DISORDER ON THE FIRST DAY OF TRIAL

 Introduction Proceedings are civil in nature and are governed by Colorado Rules of

Introduction Proceedings are civil in nature and are governed by Colorado Rules of Civil Procedure (C. R. C. P. ) Unless Colorado Rules of Juvenile Procedure (C. R. J. P. ) specifically APPLY

Colorado Rules of Evidence C. R. E. 1101 - Rules of evidence apply to

Colorado Rules of Evidence C. R. E. 1101 - Rules of evidence apply to all courts in the State of Colorado The rules generally apply to civil actions (which includes D&N)

Colorado Rules of Evidence Exceptions to application of rules of evidence: Preliminary questions of

Colorado Rules of Evidence Exceptions to application of rules of evidence: Preliminary questions of fact under Rule 104 Privilege, qualifications, admissibility of evidence

Exceptions, continued Temporary Custody Hearings – C. R. S. § 19 -3 -403(3. 6)(a)(II)v

Exceptions, continued Temporary Custody Hearings – C. R. S. § 19 -3 -403(3. 6)(a)(II)v Any evidence having probative value may be received by the court, regardless of its admissibility under the Colorado Rules of Evidence

95% of the lawyers give the rest of us a bad name

95% of the lawyers give the rest of us a bad name

Topics JUDICIAL NOTICE EXPERTS HEARSAY EVIDENTIARY OBJECTIONS MOTIONS OTHER TIDBITS

Topics JUDICIAL NOTICE EXPERTS HEARSAY EVIDENTIARY OBJECTIONS MOTIONS OTHER TIDBITS

Scenario 1 At the beginning of proceeding, county attorney asks Court to take judicial

Scenario 1 At the beginning of proceeding, county attorney asks Court to take judicial notice of Court’s entire file. IS THIS PROPER?

Judicial Notice Rule 201 Not subject to reasonable dispute Generally known within jurisdiction of

Judicial Notice Rule 201 Not subject to reasonable dispute Generally known within jurisdiction of Court Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Judicial Notice So what items from the Court file are appropriate for judicial notice?

Judicial Notice So what items from the Court file are appropriate for judicial notice? If judicial notice does not apply, are there other ways to get in reports or documents from the file?

Scenario 2 Caseworker offered as expert in child protection based upon a B. A.

Scenario 2 Caseworker offered as expert in child protection based upon a B. A. in psychology, 80 hours of DHS training, and 3 months of work experience at DHS; No prior expert testimony Should the Court qualify the caseworker as an expert?

Scenario 3 Same caseworker qualified as expert, questioned by county attorney regarding statements of

Scenario 3 Same caseworker qualified as expert, questioned by county attorney regarding statements of child victim of abuse about the identity of her abuser ADMISSIBLE THROUGH EXPERT?

Scenario 4 Same caseworker questioned about results of U. A. for respondent parent disclosing

Scenario 4 Same caseworker questioned about results of U. A. for respondent parent disclosing presence of methamphetamines ADMISSIBLE THROUGH EXPERT?

Scenario 5 Same caseworker questioned about statements made by respondent parent ADMISSIBLE THROUGH EXPERT?

Scenario 5 Same caseworker questioned about statements made by respondent parent ADMISSIBLE THROUGH EXPERT? ADMISSIBLE TO BOTH PARENTS?

Scenario 6 Same caseworker offers opinion that it is in the best interests of

Scenario 6 Same caseworker offers opinion that it is in the best interests of the child to terminate parental rights ADMISSIBLE?

Rule 702: Expert Witnesses If scientific, technical, or other knowledge will assist the trier

Rule 702: Expert Witnesses If scientific, technical, or other knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

EXPERT WITNESSES MR. SCIENCE STANDARD I KNOW MORE THAN YOU WHAT I HAVE TO

EXPERT WITNESSES MR. SCIENCE STANDARD I KNOW MORE THAN YOU WHAT I HAVE TO SAY WILL BE HELPFUL TO TRIER OF FACT

Rule 703: Experts IF facts and data are the type reasonably relied on by

Rule 703: Experts IF facts and data are the type reasonably relied on by experts in the field, those facts and data need not be admissible, BUT Facts or data that are otherwise inadmissible shall not be disclosed to the jury UNLESS the court determines their probative value substantially outweighs the prejudice.

Rule 704 Testimony in the form of an opinion or inference otherwise admissible is

Rule 704 Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact

People ex rel. M. M. 215 P. 3 D 1237 (C. A. 2009) “When

People ex rel. M. M. 215 P. 3 D 1237 (C. A. 2009) “When the underlying basis for the expert’s opinion is not accepted as reliable by the court, the expert’s testimony is inadmissible. ” Polygraph case Judge specifically stated did not rely on polygraph results REVERSED

People in Interest of J. E. B. 854 P. 2 D 1372 (C. A.

People in Interest of J. E. B. 854 P. 2 D 1372 (C. A. 1993) Social services experts may rely on reports and other info in case which might otherwise be objectionable hearsay C. R. S. § 19 -1 -107, for purposes of “proper disposition”, reports may be considered by the court If requested the party who prepared the report must be available to testify Reports may also be considered in

People in Interest of A. E. L. 181 P. 3 D 1186 (CA 2008)

People in Interest of A. E. L. 181 P. 3 D 1186 (CA 2008) Exclusionary rule does not necessarily apply in D&N Balance the deterrent benefits against the societal costs of excluding relevant evidence So drugs seized illegally from parent’s home are admissible in D&N adjudicatory trial

A. E. L. , continued Approved social worker’s qualification as an expert in child

A. E. L. , continued Approved social worker’s qualification as an expert in child welfare Weight to be given that testimony is up to the jury

Scenario 7 Visitation supervisor testifies that respondent father appeared to be under the influence

Scenario 7 Visitation supervisor testifies that respondent father appeared to be under the influence of drugs during visit ADMISSIBLE?

Lay Opinions Rule 701: rationally based upon perceptions Helpful Not based on specialized knowledge

Lay Opinions Rule 701: rationally based upon perceptions Helpful Not based on specialized knowledge Examples: intoxication, handwriting, mental confusion, sound of voice

Authentication Rule 901: The document is what the witness says it is How does

Authentication Rule 901: The document is what the witness says it is How does the witness know?

Self-Authentication Rule 902: Public records under seal Certified copies of public records Certified domestic

Self-Authentication Rule 902: Public records under seal Certified copies of public records Certified domestic business records

Hearsay Definition Out of court statement offered to prove the truth of the matter

Hearsay Definition Out of court statement offered to prove the truth of the matter asserted

Hearsay Steps IS IT HEARSAY? IS THERE AN EXCEPTION THAT APPLIES?

Hearsay Steps IS IT HEARSAY? IS THERE AN EXCEPTION THAT APPLIES?

What Hearsay Isn’t Prior Statements by witness Admission by party opponent Not offered to

What Hearsay Isn’t Prior Statements by witness Admission by party opponent Not offered to prove the truth, but to explain subsequent conduct or relevant for other purpose

Scenario 8 Babysitter testifies that 8 year old girl told her that step-dad had

Scenario 8 Babysitter testifies that 8 year old girl told her that step-dad had touched her private parts HEARSAY? ADMISSIBLE?

Scenario 9 Father testifies that 4 year old son comes homes crying and says

Scenario 9 Father testifies that 4 year old son comes homes crying and says that 19 year old neighbor hurt his bottom HEARSAY? ADMISSIBLE?

Scenario 10 Police arrive at scene of alleged domestic violence incident. Mom has a

Scenario 10 Police arrive at scene of alleged domestic violence incident. Mom has a black eye and tells police that dad just tried to kill her HEARSAY? ADMISSIBLE?

Scenario 11 On-call caseworker testifies that the department received a call on the hotline

Scenario 11 On-call caseworker testifies that the department received a call on the hotline reporting dad abused his son who is at the hospital Caseworker proceeds to hospital IS HOTLINE STATEMENT HEARSAY?

Exceptions C. R. S. § 13 -25 -129: Child Hearsay Applies to D&N proceedings

Exceptions C. R. S. § 13 -25 -129: Child Hearsay Applies to D&N proceedings Victim of sex abuse and domestic violence

C. R. S. § 13 -25 -129 Hearing out of the presence of jury

C. R. S. § 13 -25 -129 Hearing out of the presence of jury Time, content, and circumstances provide sufficient safeguards of reliability Child either testifies or is unavailable and there is corroborative evidence of the act described REQUIRES LIMITING

Child Hearsay Expert testimony RE: Child victims SHRECK, 22 P. 3 d 68 (Colo.

Child Hearsay Expert testimony RE: Child victims SHRECK, 22 P. 3 d 68 (Colo. 2001): relevant, reliable, helpful FASY, 829 P. 2 d 1314 (Colo. 1992): victim suffered from PTSD WITTREIN, 221 P. 3 d 1076 (Colo. 2009): avoid testimony of child’s truthfulness

Hearsay Rules Rule 803: Whether or not witness is available Present sense impression Excited

Hearsay Rules Rule 803: Whether or not witness is available Present sense impression Excited utterance Then existing condition Statements of purposes of medical diagnosis or treatment Business or public records

Present Sense Impression A spontaneous statement describing or explaining an event or condition made

Present Sense Impression A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event.

Excited Utterance A statement relating to a startling event or condition made while the

Excited Utterance A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.

People in Interest of O. E. P. 654 P. 2 d 312 (CA 1982)

People in Interest of O. E. P. 654 P. 2 d 312 (CA 1982) Statements of 2 year old victim of sex assault to care provider and social worker admissible as excited utterances Stress-inducing event Lack of time OR capacity to fabricate

People v. Vigil 127 P. 3 D 916 (Colo. 2006) Statements to father and

People v. Vigil 127 P. 3 D 916 (Colo. 2006) Statements to father and father’s friend admissible as excited utterance Statement to doctor that “butt hurt” admitted; no reference to who committed the assault

 Then Existing Condition A statement of the declarant’s then existing state of mind,

Then Existing Condition A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health Circumstances indicate sincerity

Medical Diagnosis Statements giving history or describing symptoms or general character of cause or

Medical Diagnosis Statements giving history or describing symptoms or general character of cause or external source “insofar as reasonably pertinent to diagnosis or treatment. ” WHAT ABOUT A STATEMENT TO L. C. S. W. ?

Medical Diagnosis, continued Oldsen v. People, 732 P. 2 d 1132 (Colo. 1986) Child’s

Medical Diagnosis, continued Oldsen v. People, 732 P. 2 d 1132 (Colo. 1986) Child’s statements to social worker, psychologist, and physician that dad sexually assaulted her not related to medical diagnosis and therefore not admissible under this exception Superseded by CHILD HEARSAY statute

Medical Diagnosis, continued Identity of perpetrator of abuse generally inadmissible under this rule, unless

Medical Diagnosis, continued Identity of perpetrator of abuse generally inadmissible under this rule, unless member of victim’s family or household WHICH ARE reasonably pertinent to the physician’s recommendations U. S. v. Joe, 8 F. 3 d 1488 (10 th Cir. 1993)

Business Records Report or data in any form Made at or near the time

Business Records Report or data in any form Made at or near the time of event Made by person with knowledge Regular practice to make report Testimony by custodian or other qualified witness

Business Records, continued People in Interest of R. D. H. , 944 P. 2

Business Records, continued People in Interest of R. D. H. , 944 P. 2 D 660 (CA 1997) Admissibility of social services records under C. R. S. § 19 -1 -107 and C. R. E. 803(6) Also discusses confidentiality of treatment records under federal regulations 42 CFR 2. 63(a)

Business Records, continued People v. Buckner, 228 P. 3 d 245 (Colo. App. 2009)

Business Records, continued People v. Buckner, 228 P. 3 d 245 (Colo. App. 2009) Data or information automatically generated by a machine is not hearsay Involved record of incoming call on a cell phone

Rule 804 Witness Unavailable Refuses to testify Lack of memory Incompetent: Child witness

Rule 804 Witness Unavailable Refuses to testify Lack of memory Incompetent: Child witness

Rule 804 Exceptions Former testimony Statement against interest Statement of personal or family history

Rule 804 Exceptions Former testimony Statement against interest Statement of personal or family history

Miscellaneous C. R. S. § 19 -3 -207(1): Admissibility in criminal case of evidence

Miscellaneous C. R. S. § 19 -3 -207(1): Admissibility in criminal case of evidence derived from compulsory process in D&N Requires notice and hearing Burden on DA to prove prejudice to prosecution

Miscellaneous C. R. S. § 19 -3 -207(2): Statements made to professionals pursuant to

Miscellaneous C. R. S. § 19 -3 -207(2): Statements made to professionals pursuant to court order are inadmissible in criminal case No notice or hearing

Miscellaneous C. R. S. § 19 -3 -207(3): No admission by respondent in open

Miscellaneous C. R. S. § 19 -3 -207(3): No admission by respondent in open court or by pleading admissible in criminal case except for impeachment

Miscellaneous C. R. S. § 19 -1 -307: Discovery of DHS records Presumptively confidential

Miscellaneous C. R. S. § 19 -1 -307: Discovery of DHS records Presumptively confidential for most purposes Except if necessary for determination of issue before court

Miscellaneous People v. Jowell, 199 P. 3 D 38 (C. A. 2008) Discovery of

Miscellaneous People v. Jowell, 199 P. 3 D 38 (C. A. 2008) Discovery of DHS records governed by this statute, NOT Rule 16 Describes process to obtain in camera review

Residual Exception Rule 807 More probative than other evidence General purposes served by admission

Residual Exception Rule 807 More probative than other evidence General purposes served by admission Requires prior notice to opponent

In the future, please say “I object”, rather than “that’s total bullshit”

In the future, please say “I object”, rather than “that’s total bullshit”

Most Common Objections Leading No foundation Hearsay Argumentative

Most Common Objections Leading No foundation Hearsay Argumentative

Objections C. R. E. 103 Requires: Timely objection Reversal only upon showing that affects

Objections C. R. E. 103 Requires: Timely objection Reversal only upon showing that affects substantial right of a party

Objections, continued When to make: Exclude prejudicial evidence Disrupt opponent’s presentation Sometimes an objection

Objections, continued When to make: Exclude prejudicial evidence Disrupt opponent’s presentation Sometimes an objection highlights evidence

Objections, continued How to make: Objection (hearsay, leading, etc. ) Avoid speaking objections in

Objections, continued How to make: Objection (hearsay, leading, etc. ) Avoid speaking objections in presence of jury STAND UP!!!!

More Miscellaneous Rules RULE 611(C): Leading questions on direct are permissible to develop testimony

More Miscellaneous Rules RULE 611(C): Leading questions on direct are permissible to develop testimony

Rule 612 Refresh recollection Document need not be admissible

Rule 612 Refresh recollection Document need not be admissible

Rule 613 Prior inconsistent statement Call attention to time and place of prior statement

Rule 613 Prior inconsistent statement Call attention to time and place of prior statement “The exact language of the prior statement may be given” If admitted, extrinsic evidence not admissible

Motions PRE-TRIAL Discovery Summary judgment Experts- when to use TRIAL Motions in limine Directed

Motions PRE-TRIAL Discovery Summary judgment Experts- when to use TRIAL Motions in limine Directed verdict

Privilege C. R. S. § 19 -3 -311: Traditional Privileges “Shall not be a

Privilege C. R. S. § 19 -3 -311: Traditional Privileges “Shall not be a ground for excluding evidence resulting from a report…of child abuse But does not constitute a complete waiver, Dill v. People, 927 P. 2 D 1315 (Colo. 1996)

Other Tidbits Negative inference from silence Baxter v. Palmigiano, 425 U. S. 308 (1976)

Other Tidbits Negative inference from silence Baxter v. Palmigiano, 425 U. S. 308 (1976) Chaffin v. Wallain, 689 P. 2 d 684 (Colo. App. 1984)

JUVENILE COURT

JUVENILE COURT

CASE LAW UPDATE Survey of Case Law 2010 -2012

CASE LAW UPDATE Survey of Case Law 2010 -2012