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 1 st 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.  Not in all jurisdictions

Admissions Generally  Waiver of Factual basis  C.R.S. § orders  Interim treatment plans

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.§

Deferred Adjudication 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  Conditions – similar to treatment plan  6 months plus 6 months  Governed by C.R.S. § (5)

Admissions  No fault. C.R.S. § (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  Homelessness:  Homelessness cannot and should not be used as the sole basis to sustain a petition of dependency.

Admissions  Injurious environment C.R.S. § (1) (c)  Waive factual basis  Lacks proper care through acts or omissions C.R.S. § (1) (b)  Beyond control of parent C.R.S. § (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 ittees/Committee.cfm/Committee_ID/8

Pretrial Motions  Motions for summary judgment  Motions in Limine  Discovery

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

Timing  Within 90 days from service of the petition if child over 6  Within 60 days from service of petition if under 6

Burden of Proof  On Department to show child is dependent or neglected  Non-ICWA: By a preponderance  ICWA: Clear and convincing, 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. § 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. §  Siblings  Exclusionary rule

Causes of Action: Abuse  Physical Abuse  Defined at C.R.S. § : 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. § (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.

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???