Adjudication Hearing Factfinding Trial
Before the Adjudicatory Hearing • Advisement hearing • Often the parent’s chance to either enter a denial or an admission to the petition • Sometimes advisement hearings, or 1st hearings, are used as control dates for return of service for noncustodial parents. • Formal advisement • Some jurisdictions require a written advisement be initialed and signed by the client. Others use a video advisement. • Opportunity to make an admission • Respondent parent counsel 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. On the other hand, the risks are great. There is no time for an investigation, no time to obtain records and discovery, and no time to create any possible defenses. • Admissions at the advisement hearing are not made in all jurisdictions
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 • Note whether your client is already engaged in services, perhaps through probation or some other involvement.
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 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 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: • 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 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.2d 476 (Colo. App 1989).
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 use case management/trial management orders
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/Committee_ID/8
Pretrial Motions • 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. • CRCP 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 law, does not apply • While hearsay is admitted at many hearings (except adjudication and termination), remember that privilege is never waived • 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. § 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 • Within 90 days from service of the petition if child over 6 • 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 a preponderance • ICWA: Clear and convincing, as to certain factors, with expert testimony
Purpose • 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 P2d 627 (Colo. App. 1983) • Interest and welfare of the child control. Fulton v. Martensen, 129 Colo 125 (1954)
Evidence • Rules of evidence apply, so hearsay not admissible • A caseworker’s report may be not admissible at adjudication. C.R.S. §19-1-107 discusses the report’s admissibility for disposition and treatment planning purposes. But see People in the Interest of A.R.S, 31 Colo. App. 268 (1972), in which the Court did permit the report at adjudication. • Also, the report may be entered as past recollection recorded, under C.R.E. 803(5), if caseworker cannot remember some detail. • If a report is entered, even at disposition, then the author must be available for cross- examination.
Evidence • Child Hearsay exception C.R.S. §13-25-129 • Colorado’s child hearsay exception consists of a multi-part test. First, there must be a reliable statement, and the child must testify, or the child’s statement must be corroborated, and the child must be found to be unavailable.
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.S. §16-22-102(9) • Emotional Abuseis 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 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 with proper or necessary: • Subsistence; • Education; • Medical care; or • Any other care necessary for the child’s health, guidance, or well-being.
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 released from prior orders • Department must expunge its records
Adjudication Motions Practice- Possible Pretrial Motions: • Motion for review of DHS records • Request for production of documents • Request for deposition • Motion in limine • Motion to dismiss • Motion for expert fees • Motion to vacate and reset • Motion for genetic testing • Objection to notice of intent to offer hearsay statements • Child hearsay motion • ICWA: motion for hearing and active efforts report • Motion for interpretor services • Motion regarding subject matter jurisdiction: UCCJEA • Motion to transport • Motion to quash subpoena • Motion to release report • Subpoenas • Motion for telephone testimony • Witness list
Review Checklist • Before the hearing • During the hearing • After the hearing
Success Stories • Successful pretrial motions • Successful negotiations for deferred • Successful jury trials
Q and A • Any Questions???