Online Pre-Service Case Management Course

XV. Courts

Outline:

A. Learning Objectives

B. Process Map for Kansas Code for the Care of Children
C. Court Processes

D. Writing Court Reports
E. Depositions

F. Going to Court

A. Learning Objectives:

Learners will be able to identify the different types of court hearings and where they belong in the overall process of a child welfare case.
Learners will be able to explain the purposes of each court hearing and identify time frames required by federal statute.
Learners will be able to identify techniques to use when writing court reports.
Learners will be able to identify strategies to use when providing testimony on the witness stand and/or in a deposition.
Learners will be able to demonstrate professional behavior when communicating and/or appearing in court.

B. Process Map for Kansas Code for the Care of Children

Casey Family Programs has created a visual picture of the process children and families go through once an abuse/neglect allegation is made.

C. Court Processes:

Types of Hearings

The court process for Child In Need of Care (CINC) involves several types of hearings that are held in the district court for your county. Each has a different purpose and is held within different time frames. Following is a brief description of these hearings.

Temporary Custody Hearing: A temporary custody hearing is held within 72 hours (exclusive of weekends and legal holidays) of child's removal from home, or may be where the decision to remove is made. The judge reviews the petition and reports, as well as the evidence presented, and decides whether the child stays at home or is to temporarily live out of the home. If the judge orders the child to be removed from the home, custody may be given to a relative, kin or other appropriate person or to the Secretary of DCF. The judge may also place additional conditions on the child and family through court orders.
Adjudicatory Hearing: An adjudicatory hearing is to be held within 30 days of the Temporary Custody Hearing. The judge considers the evidence presented to see if there is enough information to determine whether the child is a Child In Need of Care (CINC). If the judge does not find the child to be a CINC, then the case is dismissed and the child is returned to the parents. If the judge finds the child is a CINC, a Dispositional Hearing is scheduled. Click HERE to read more about the Adjudication Hearing.
Dispositional Hearing: A dispositional hearing may be held at the same time or no later than 30 days after the adjudication hearing. The judge determines if the child will return to the parents, be placed in DCF custody, or placed with relatives or kin. This is different from the temporary custody hearing as the custody decision will be implemented until identified problems are corrected. At this hearing the judge will consider a variety of issues, including:

The child's physical, mental, and emotional condition;
The child's need for assistance;
Results of court-ordered evaluations such as drug and alcohol, parenting, or psychological;
The parents' past and present actions and behavior;
Any additional relevant information, and

The judge may also order:

An agency to move the child;
The child and parents to participate in counseling;
Evaluations of child and family members, drug testing or family visitation times;
The parents to have no unsupervised contact with the child;
The parents to pay child support.

Click HERE to read more about the Dispositional Hearing.

Review Hearings: Review hearings are held as needed. During these hearings, the judge reviews the progress reports of the permanency plan filed by DCF or the CWCMP provider, the resource parents and others. Click HERE to read more about the Review Hearing.
Permanency Hearing: A permanency hearing is held at least every 12 months from the date the child was removed from the home. The judge reviews progress made toward meeting the permanency goal, and makes a written finding as to whether reasonable efforts have been made to accomplish the permanency goal, and if continued out-of-home placement is necessary for the child's safety. The judge will determine when the child should be returned to the family or if another goal should be considered for the child. If reintegration is no longer an option, a petition will probably be filed to terminate the parental rights. Click HERE to read more about the Permanency Planning Hearing.
Termination of Parental Rights Hearing: A termination of parental rights hearing may occur anytime during the CINC process. The prosecutor must show by clear and convincing evidence that the parent/child relationship should end:

Parent is unfit by reason of conduct or condition;
Parent is unable to care properly for a child;
Parent conduct or condition is unlikely to change in the foreseeable future.

The judge may terminate the parents' rights or order the family to continue to work on the permanency plan and set another hearing date; or order a new plan and set a review hearing date. Click HERE to read more about the Termination of Parental Rights Hearing.

People Involved in the Court Process

Judge - Makes legal decisions and court orders in your case.
District or County Attorney (usually the Assistant) - Lawyer representing the state.
Guardian Ad Litem (GAL) - Lawyer appointed to protect the interest of the child.
Your Attorney - Lawyer you hire or request to be appointed (if you are not able to pay for one).
Court Services Officer (CSO) - Monitors the case/court orders for the court.
Court Appointed Special Advocate (CASA) Volunteer - Trained volunteer appointed by the judge to advocate for the best interests of the child.
Twenty-three of the 31 District Courts in Kansas have CASA programs.
Citizen Review Board - Three to seven trained community volunteers appointed by the judge to review the status of CINC case.
Nine of the 31 District Courts in Kansas have a Citizen Review Board.
Parent Ally - Parents may pick up to two people to be present with them at court hearings for support. These support persons, often family or friends, must participate in the Parent Ally program orientation.

Appeals
A parent may appeal any adjudication, disposition, finding of unfitness, termination of parental rights, or order of temporary custody. There are time limits to file an appeal and the appealing party may be required to pay fees and expenses. Even if an order has been appealed, the order will generally remain in effect until the appeal is decided.

D. Writing Court Reports:

REPORTING TO THE COURT - A GUIDE FOR CASE MANAGERS

Alice Anne Espenshade, Attorney, Beaufort County Department of Social Services
Source:

Legal Writing Tips:

Know your audience: You are writing to a busy, impatient person who is accustomed to listening to concise recitations of legally significant facts and the arguments that can be logically drawn from them. A judge cherishes clarity and brevity, and focus on truly relevant things. A judge is wary of flattery, incompleteness, or anything that smacks of emotional manipulation.
Know your purpose in writing: When you write a report to the court in the context of a child abuse/neglect/ dependency case, you are doing one of the following things, and nothing more:

A. Identifying risks to, and needs of, the child in question.
B. Analyzing the causes of those risks and needs.
C. Prescribing curative actions to address those risks and needs.
D. Measuring the progress of others in addressing those risks and needs.
E. Setting out a reasonable plan for permanence, in light of those risks and needs and progress made in addressing them.

Your purpose in writing is not to justify yourself or your agency, or to contradict the opinions of others. Your purpose in writing is not to tell the judge everything that has happened in the case since the last review. Your purpose in writing is not to make the child or the parent feel good (or bad) about himself or herself. Your purpose in writing is not to lobby for resources that are not presently available to you.

Stay focused on your purpose in writing, and include only the information that is needed to achieve your purpose. For example: a case manager's frustration level with a given case is usually at its maximum as s/he sits down to write a court summary in which s/he is recommending suspension of reunification efforts as futile. It is a very human impulse at this point to describe in detail every single missed appointment, hostile conversation, and lapse in judgment that has made this parent impossible to work with. Don't do it. If you correctly and completely identified the risks to the child in the home in your first report, then the court ordered all the things necessary to remove those risks. Simply set forth the parent's refusal or failure to take each step defined by the court to reduce the risk in the home, and briefly state why you believe the parent is not likely to achieve those things in the future.
Be specific and concrete. Avoid words or phrases that have been depleted of meaning by overuse. Example: the phrase "behavioral problems" has been used to describe everything from fidgeting to setting fires, and therefore it conveys very little. If little Bobby was suspended for cutting a classmate's pigtail off and calling the teacher a "honky bitch," then tell the court exactly that.
Case managers are trained to believe that every person is capable of changing his or her life for the better. Case managers are trained to communicate with clients in gentle and supportive terms, and to accentuate the positive, so that clients remain motivated to make needed changes. This style of communication is not appropriate when you are writing a report to the court. Stay factual and focused, and don't pull any punches. If you soft-pedal problems, or overly praise parental progress, you run the risk that the court will send the child home before the family is truly ready.

Don't waste time telling the court what it has already done. It is okay to paraphrase a prior court order. The focus should be on whether or not the party has complied with the order, and not its actual language. If the judge needs to know the actual language of a prior order, s/he can look in the court file.
Listen to yourself. The best technique for improving the clarity of your writing is to read it out loud. Most of us have forgotten the specific rules of grammar. Our eyes gloss over problems as they move across the page, and make incomplete things whole.
Spell-Check does nothing but highlight those letter clusters it cannot recognize as words.
Spell-Check is not programmed to recognize terms of art in law, medicine or pharmacy.
Spell-Check does not distinguish between homonyms.

Our ears, on the other hand, detect things that our eyes or computer can miss. You can hear flaws in a sentence's structure, like noun-verb agreement or shifts in tense, that you would probably never see. Also, by reading aloud, you hear the writer's voice as the reader will. You might be surprised that you sound a little snippy, or whiney, or pompous, or sarcastic when the words you have chosen are actually spoken. In reading aloud, you will also become aware of repetition - you may not see that you are using the same word over and over, but you will hear it. The final virtue of reading aloud is that it reveals sentences that are just plain too long. Any sentence that requires you to draw breath in the middle needs to be cut at least in half. A short simple sentence that fully expresses a single idea should always be your goal.

E. Depositions:

What is a Deposition?

A deposition is a legal proceeding conducted in accordance with certain court rules for the purpose of preserving the testimony of a witness for use in court.

How is a Deposition Conducted?

After everyone is seated and ready, the court reporter or a notary public will ask you to raise your right hand and take the standard witness oath. The lawyers in the room will then take turns asking you questions. The court reporter will record everything said by the lawyers and witnesses; these notes will later be typed and bound in a book called a "transcript" or "deposition."
Depositions are rather informal. The proceeding is usually conducted in a lawyer's office or meeting room in the courthouse. The lawyers may trade side comments but do NOT let this informality mislead you; depositions are vitally important to a lawsuit and the attorneys are very serious.

What is the Purpose of Taking a Deposition?

To discover admissible evidence for use at trial or to develop information that will lead to such discovery;
To obtain admissions or create weaknesses;
To pin down testimony of witnesses;
To narrow the issues for trial;
To develop material for cross-examination; and
To evaluate the parties, the witness, and their counsel.

Check Points for Testifying at a Deposition

Tell the Truth - ALWAYS!! Everything you say is recorded.
Unlike court trials, there is no judge present. Objects are only to the form of the question and you are required to answer all questions unless counsel directs otherwise.
Beware of catch-al type questions at the end or during the deposition, such as: "Are you aware of anything else I should know about that we have not discussed?" The answer to this question is always NO. Let the attorney's do their job. If they have a specific question, let them ask it, but do not volunteer information.
After giving a deposition, you as a witness may review the transcript. A question at the end of the deposition is usually "Do you with to read or waive?" You should always wish to read. This is your chance to correct any misstatements in your testimony. Never waive review of your deposition.
Due to costs in transcribing a deposition, the attorneys may not have them transcribed. If that is so, you will not be able to review it. Usually the attorney's will not have a copy and will only ask you questions on the notes they have taken during the deposition. Do not be pushed into agreement with any of their statements. If you do not recall saying something, say so!
Always on the day of the trial ask to review your deposition. Never take the transcript of the deposition up to the witness box with you unless instructed by counsel to do so.
While on the stand, an attorney may read from the deposition and ask if you agree that this is what you said. Ask to look at the deposition to see in what context you made the statement. Take your time reading the deposition. Do not be bullied into answering. You may even let the court know you did not have a chance to read the deposition or ask if you could have time to read the portion counsel is referring to.

F. Going to Court:

Check Points for Going to the Courthouse

Dress appropriately! (Clean, pressed professional clothing that does not display too much skin, is too tight or represents negative behavior (drinking, drugs, slang or derogatory terms, etc).
Be yourself.
Familiarize yourself with the location of the courthouse.
Be prompt (if not early!).
Be well rested.
Ask to see the courtroom.
Do not memorize your testimony, but review your case files and note specific events or dates.
Go over anything that may bother you about your testimony. If you are unsure about something, talk to the attorney handling the case. Get the bugs out early.
Be professional in the hallway. You never know if jurors, or family members are watching or listening.
Do not compare testimony with other witnesses before the trial.
When speaking with opposing counsel whether on the phone or in the hallway of the courthouse, remember everything is "on the record." Be polite.
Only discuss testimony after the trial and only when counsel instructs you to do so.

Check Points for Nervousness

Make sure that you are prepared. Re-read the case facts and issues several times before appearing as a witness.
Take a couple of long deep breaths right after you sit down in the witness chair. Breathe deeply and pause before answering.
If you do not understand a question, ask to have it repeated.
If you have a dry mouth or throat, ask for a glass of water. That is what it is there for.
Keep your eyes focused on the person asking you the questions.
Answer the questions directly and concisely. Act as if you are explaining it to someone who has no understanding of the subject or people involved.
Maintain good posture. This will help the flow of blood to your brain and prevent you from getting nervous.
Dress professionally and comfortably. You are wearing a "professional hat" so present yourself accordingly. How you dress can provide you, and others, with more confidence in your answers.
If you do not know the answer, say so. The worst thing for nervousness is to start talking about something you know nothing about. Stick to what you know and let the rest go!

What All Witnesses Should Know