Understanding Legal Writing: Petitions and Beyond

1. Understanding Legal Writing:Petitions and Beyond Understanding Petitions, Motions, Affidavits and Reports and how to use them to effectively present your position to the court

2. Understanding Legal Writing What this Presentation is NOT: • Legal Writing 101 • A hands on tutorial in becoming a ‘legal’ writer • A remedial English writing class

3. Understanding Legal Writing What this Presentation is: • An overview of the various forms of written documentation used within the judicial system, specifically juvenile and family court • Familiarizing you with legal terminology and definitions • An opportunity for you to reflect on how you communicate and how to be more effective in presenting your position

4. Goals of This Presentation: • Increase your understanding of the purpose of petitions, motions and affidavits • Enhance your skills in writing effectively • Understand the purpose and need for thorough note taking and documentation • Writing effective reports

5. Learning Objectives • As a result of this presentation you will be able to: • Understand what is needed to comprise a CHIPS/TPR Petition • Have a better idea, in consultation with your district manager and coordinator, whether it is appropriate to submit an affidavit to advance your position with the court • Recognize the importance and purpose of motions • How to prepare better, more concise reports to the court • How and why to maintain better notes and logs of your activities in any given matter

6. Minnesota Rules of Guardian ad Litem Procedure RULE 907 RIGHTS OF GUARDIANS AD LITEM • Rule 907.01. Rights in Every Case • Subd. 1. Generally. In every case in which a guardian ad litem is appointed pursuant to Rule 903, the guardian ad litem shall have the rights set forth in clauses (a) to (d).

7. Rules of Guardian ad Litem Procedure • (a) The guardian ad litem shall have access to the child or incompetent adult including meeting with the child alone as deemed appropriate by the guardian ad litem; and shall have access to all information relevant to the child's or incompetent adult’s and family's situation which is accessible under applicable state and federal laws. • (b) The guardian ad litem shall be furnished copies of all pleadings, documents, and reports by the party which served or submitted them. A party submitting, providing, or serving pleadings, documents, or reports shall simultaneously provide copies to the guardian ad litem.

8. (c) The guardian ad litem shall be notified of all court hearings, administrative reviews, staffings, investigations, dispositions, and other proceedings concerning the case. Timely notice of all court hearings, administrative reviews, staffings, investigations, dispositions, and other proceedings concerning the case shall be provided to the guardian ad litem by the party scheduling the proceeding. • (d) The guardian ad litem shall have the right to participate in all proceedings through submission of written and oral reports, and may initiate and respond to motions. • Subd. 2. Not Unauthorized Practice of Law. The exercise of the rights listed in subdivision 1 by a guardian ad litem shall not constitute the unauthorized practice of law.

9. Rules of Guardian ad Litem Procedure • Rule 907.02. Rights as a Party • In addition to the rights set forth in Rule 907.01 and any other rights set forth in statute, court order, or Rule, in every case in which a guardian ad litem is a party, the guardian ad litem shall have the right to: • (a) legal representation; • (b) be present at all hearings; • (c) conduct discovery; • (d) bring motions before the court; • (e) participate in settlement agreements; • (f) subpoena witnesses;

10. Rules of Guardian ad Litem Procedure • (g) make argument in support of or against the petition; • (h) present evidence; • (i) cross-examine witnesses; • (j) request review of the referee’s findings and recommended order; • (k) request review of the court’s disposition upon a showing of a substantial change of circumstances or that the previous disposition was inappropriate; • (l) bring post-trial motions; and • (m) appeal from orders of the court. • The exercise of these rights shall not constitute the unauthorized practice of law.

11. The Petitions and Motions you are about to see have been filed with the court by an actual attorney, licensed to practice law in the state of Minnesota. • DO NOT ATTEMPT THIS ON YOUR OWN!

12. Petitions • What are they and why are they necessary? A CHIPS or TPR Petition is the vehicle used to bring a matter before the court: “Any reputable person, including, but not limited to an agent of the commissioner of human services, having knowledge of a child in this state or of a child who is a resident of this state, who appears to be in need of protection or services or neglected in foster care, may petition the juvenile court in the manner provided in this section. Minn. Stat. §260C.141, subd. 1(a)

13. Petitions WHO MAY FILE A PETITION? The individual who may bring a petition is broadly defined. There are essentially two requirements that the individual must possess: 1. they must be reputable, generally speaking, within the community; 2. they must have knowledge of a child within the state who appears to be in need of protection or services or neglected in foster care. Knowledge, in legal terms, is often defined as personal knowledge; that is, personally knowing something. However, the statute above does not specifically require personal knowledge by the individual filing a petition.

14. Petitions A reputable person is generally defined as someone who is known for honesty and truthfulness. Therefore, an individual reputable in the community for honesty and truthfulness, who learns from another individual who does have personal knowledge of a child who appears to be in need of protection or services, creates a sufficient basis for filing a petition.

15. Petitions • Almost all petitions filed under Minn. Stat. §260C.141 are brought by the local social services agency under the direction of the county attorney. • Petitions filed by someone other than the local social services agency under the direction of the county attorney are considered ‘private’ petitions. • Special forms developed by the state court administrator are required for any private petition. See, Minn. Stat. §260C.141, subd. 1(b). • These are the forms that you are required to use if a decision is made within the guardian ad litem program to file a private petition.

16. Petitions • It is very important to know what the petition must contain in order to make an intelligent decision whether to go forward with filing a private petition. REMEMBER: whether a child is in need of protection or services is a legal determination made by the court after receiving all the evidence. The standard of evidence must be clear and convincing. The threshold requirement for filing a petition is whether an individual has knowledge of a child who appears to be in need of protection or services.

17. Petitions • A private petition is submitted to the court administrator, who must first review it prior to filing, to ensure that it is properly completed. See, Minn. Stat. §260C.141, subd. 1(b) and Minn. R. Juv. Prot. P. 70.02, subd. 2(b)(3). • A private party is required to acknowledge in its petition that it has contacted the local social services agency before submitting the petition for filing. Failure to do so is a basis for the court administrator rejecting the petition. Minn. Stat. §260C.141, subd. 1(b). • Generally, when a guardian ad litem is filing a private petition, he/she or someone else within the guardian ad litem program in that district has had prior contact or involvement with that local services agency regarding the child(ren) who are the subject of the petition. Such contact is sufficient for purposes of filing the petition. There is no specific minimum amount of contact that has to be shown other than a report of alleged neglect or abuse of the children subject of the petition has been made.

18. Petitions • Minnesota Statute dictates what information must be contained in a privately filed petition: • (1) a statement of facts that would establish, if proven, that there is a need for protection or services for the child named in the petition; • (2) a statement that the petitioner has reported the circumstances underlying the petition to the responsible social services agency, and protection or services were not provided to the child; • (3) a statement whether there are existing juvenile or family court custody issues or pending proceedings in juvenile or family court concerning the child; and • (4) a statement of the relationship of the petitioner to the child and any other parties. Minn. Stat. §260C.141, subd. 1(b).

19. Petitions • Note: For guardians especially involved in family court: the statute specifically directs the court to not allow a petition to proceed under the above paragraph if it appears that the sole purpose of the petition is to modify custody between parents. See, Minn. Stat.§260C.141, sub. 1(b). • This prohibition places a potential ethical requirement on a guardian in two distinct ways: • 1. a guardian cannot knowingly file a private petition solely as a means to assist changing custody from one parent to another; • 2. if a guardian, in good faith, believes that a private petition filed by one parent is merely an attempt by that parent to modify custody, the guardian may need to inform the court of its concerns. This can be accomplished through an affidavit (discussed later).

20. Petitions Private CHIPS Petitions filed by the guardian ad litem is very rare. More likely, though also not common, is a private TPR Petition filed by a guardian ad litem.

21. Motions • A motion is a request made to the court to rule on a specific and particular issue. Motions may be made orally during a hearing or in writing prior to the hearing being held. Written motions are often accompanied by memoranda, a formal written statement that states the legal basis for why the requested motion should be granted.

22. Motions • As noted earlier, Minnesota Rules of Guardian ad Litem specifically allow guardians to file and respond to motions on their own, without the use of an attorney. This is not recommended. • Depending upon the complexity of the case, the specific issues to be ruled on in the motion and the adversarial nature of the parties, it may be prudent to consult with the district coordinator/manager to determine the need for a more formal response to a motion brought by another party.

23. Motions • Consider consulting with an attorney to review the possible collateral consequences of either agreeing with or objecting to another party’s motion. • Motions filed by a guardian should normally be done in consultation with an attorney representing the guardian. • In addition to or in lieu of a memorandum supporting the motion, the guardian can effectively bolster their motion by attaching an affidavit of the guardian that details the basis for requesting whatever relief is sought in the motion itself.

24. Affidavits • An affidavit is a written statement of FACTS, made under oath that the contents are true, to the best of the affiant’s knowledge. • Affidavits can be submitted to the court for a number of different reasons: • As an attachment in support of a motion • As a basis for requesting a hearing regarding disputed issues • In lieu of testimony from an unavailable witness

25. Affidavits • Use of correct language in an affidavit is important 1. it should state objective facts as much as possible, not subjective opinion; 2. it should not be open to interpretation; 3. it should contain as much detail as is warranted by what is being sought from the court; a proper affidavit may be several sentences long or multiple pages.

26. Reports • Districts vary as to when/if a Court Report should be submitted. • Review Hearings • Trial • Post Permanency • Adoption • Permanent Custody

27. Reports • Should always be focused on the child(ren), not the parents • Should be detailed – fact specific • Should always be focused on the children • Should contain new collateral information since the filing of the previous report • Should always be focused on the children

28. Notes/Logs • Essential to have good note taking/logs • Logs form the basis for the factual component of reports • Logs provide specific detail when used properly • The goal of keeping a log is to record and reduce to writing everything you do as a guardian on a case; this includes, but is not limited to:

29. Notes/Logs • Phone calls • Meetings/Visits • Observations • Correspondence • Contacts

30. Notes/Logs • Detail and specificity are key; every entry should contain the following minimal information: • Date, time, location • Type of event; i.e. phone call, visit, court hearing, etc. • All individuals present • Purpose of event; i.e. phone call from social worker informing that parental capacity assessment has been received; observation of supervised visitation, etc. • Specific detail of what occurred; i.e. content of conversation with social worker, what s/he said were the specific recommendations of the parental capacity assessor; observed father raise his voice three separate times during the visit. What words were specifically said in each incident, etc.

31. Notes/Logs • Any additional observable facts, pro and con, that assist in creating a complete picture of the event; The credibility of the guardian is based upon the thorough and professional manner in which you advocate for the best interests of the child. This can be accomplished only by having a solid, unimpeachable basis for why you have arrived at the opinion you have. A faulty memory, incomplete or nonexistent notes regarding matters you have participated in can be used by an opposing party to show the court that your opinion is flawed.

32. Notes/Logs The easiest way to avoid this problem is to develop a habit now to keep detailed notes of every interaction you have on any given case. The less vulnerable you are on this issue the more problematic for opposing parties to attempt to undermine your credibility.

33. Questions?

34. Thank You For All Your Work Advocating For Children!