adjudication hearing
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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 - PowerPoint PPT PresentationTRANSCRIPT
ADJUDICATION HEARINGFactfindingTrial
Before the Adjudicatory Before the Adjudicatory HearingHearing 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 GenerallyAdmissions 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 AdjustmentInformal 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 AdjudicationDeferred 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 Conditions – similar to treatment plan 6 months plus 6 months Governed by C.R.S. §19-3-505(5)
AdmissionsAdmissions
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 cannot and should not be used as the sole basis to sustain a petition of dependency.
AdmissionsAdmissions
Injurious environment C.R.S. §19-3-102 (1) (c) Waive factual basis 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 ConferenceSettlement 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 ConferencePretrial Conference
Pretrial issues Witness lists Jury instructions
Not always a hearing: Some jurisdictions use case
management/trial management orders
Local PracticeLocal 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 MotionsPretrial Motions
Motions for summary judgment Purpose: Moving party can avoid trial when, as a
matter of law, no undisputed 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 TrialJury 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) Challenges for Cause C.R.C.P. 47 (e)
TimingTiming
Within 90 days from service of the petition if child over 6
Within 60 days from service of petition if under 6
Burden of ProofBurden of Proof
On Department to show child is dependent or neglected
Non-ICWA: By a preponderance ICWA: Clear and convincing, with expert
testimony
PurposePurpose
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)
EvidenceEvidence
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.
EvidenceEvidence
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: AbuseCauses 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: AbuseCauses 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: NeglectCauses 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: NeglectCause 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.
DismissalDismissal
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 ChecklistReview Checklist
Before the hearing During the hearing After the hearing
Success StoriesSuccess Stories
Successful pretrial motions Successful negotiations
for deferred Successful jury trials
Q and A
Any Questions???