Monday, July 1, 2013

The Life of a DCPP Case, Part Three - The Stipulation Conference and Case Management Conference

The Stipulation Conference and Case Management Conference

Once your lawyer has received the discovery from the Deputy Attorney General and Law Guardian,
he or she will want to discuss your option with you.   Usually the Court will set a date for a Case Management Conference or a Stipulation Conference before setting a date for the fact-finding trial.


Your first decision you need to discuss with your lawyer is whether or not to stipulate, or admit to, a specific allegation of abuse or neglect in the complaint.  Do not make this decision without discussing it with your lawyer first. 

Before you have this discussion, you should have already outlined your response to the Division's complaint, as if you were answering it.   This will make it easy for your lawyer to understand which facts in the Division's complaint are true and which ones you disagree with. 

If  you stipulate, the Judge can order that your child continue in placement and order you to comply with services that the Division wants you to use in order to get your child back.  Your lawyer will find out what these services are before you decide to stipulate.

Every case is different, but in general your lawyer would ideally prefer to take your case to trial.  However, in some situations, your lawyer may advise that  a stipulation would be the better course of action.   This post is not legal advice, however in every case, your lawyer will discuss reasons why you should stipulate, and the reasons why not.  

Reasons why you should stipulate:

  • You acknowledge that a least some of the allegations against you are true;
  • You wish to apply to participate in Family Drug Court in one of the counties that has one.  A Stipulation is necessary to apply to the program and your lawyer will explain the rights you will need to waive in order to participate.
  • Your case is going well and your child has already been returned to you, or will be shortly.  In this situation you and your lawyer may decide that it is best to just move the case along.
  • The Division has notified your lawyer that it wishes to prove the allegations against you by "clear and convincing evidence."  The standard of proof for a fact-finding trial is "preponderance of the evidence" which is a very low standard of proof.   As you may know, in criminal cases the standard of proof is "beyond a reasonable doubt."  In cases for Termination of Parental Rights, the standard is something in between, "clear and convincing."  Although you are not facing trial for Termination of Parental Rights now, if the Judge makes a finding of fact by clear and convincing evidence, that means that the Division has already proven part of its case if they seek to terminate your rights later.
  • A stipulation cannot be used against you in another court, although any statements you make in on the record concerning the facts of the case can be.
  • Your attorney feels it is best to litigate the facts later, at a trial for Termination of Parental Rights, if such a trial cannot be avoided.

Reasons why you should not stipulate and proceed to trial:

  • You will waive your right to a fact-finding trial and any appeal. 
  • You also waive your right to appeal the Division's internal finding of abuse or neglect before an administrative law judge. 
  • Your name will be placed on the Division's registry of offenders (I will discuss this in detail in another post) and you will not be able to ask for it to be removed.
  • Your attorney has determined that you have a strong defense on the facts and wishes to preserve issues for appeal even if you lose.

Case Management and Stipulation Conferences

The Court has lots of DCPP cases on the calendar, and wants to dispose of some of them before they go to trial.  Sometimes the court will schedule a Stipulation or Case Management Conference before the fact-finding date to give the attorneys a chance to discuss a possible stipulation.

Your lawyer will talk to the DAG and find out which facts the Division wants you to admit in your stipulation.  Your lawyer and the DAG will agree on the language and will ask you if you can agree to the stipulation.  If you stipulate, you will be required to fill out a form which your lawyer will discuss with you, and testify on the record.  If you do not stipulate, the court will set a date for the Fact-Finding Trial.

Conversion To "Title 30"

In some cases, the Division may choose not to seek a finding of abuse or neglect against you, your co-parent, or both, but will instead ask for the court to keep the case open under "Title 30."  That means that DCPP does not believe abuse or neglect occurred by definiition, but does believe that your family needs services.  Your lawyer may advise  you to stipulate under Title 30.

Keep in mind that the Division can conclude its abuse/neglect investigation in four ways, substantiated, established, not established, or unfounded.  Sometimes the Division will seek to dismiss the case under Title 9 and proceed under Title 30  even when their finding is "established."  The courts have determined that there is no right to a fact-finding over a finding of "established" and that the only remedy is an administrative appeal.  That means the Division may keep a record of a finding of "Established" even if the case is dismissed under Title 9 and proceeds under Title 30.  (Your lawyer can advise you how to proceed in this situation).

Next: The Fact-Finding Trial and Disposition Hearing

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