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.

Not in all jurisdictions  

Admissions GenerallyAdmissions Generally

Waiver of Factual basis C.R.S. § 19-3-207 orders Interim treatment plans

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

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 Motions in Limine Discovery

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

Siblings Exclusionary rule

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.

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???