Preparing for Trial
After you have considered your options with your attorney, you will decide whether to proceed to trial. If you decide not to surrender your rights, or choose another one of the options I discussed above, your lawyer will begin to prepare your legal defense for you.
This process begins the first time you and your lawyer appear in court for the first case management conference. DCPP must give your lawyer copies of all the documents that it intends to use as evidence against you, as well as a list of all potential witnesses. Your lawyer also can review the entire DCPP file if necessary.
The records in discovery will include evaluations and reports from treatment providers for both you and your child. there will be reports about the quality of any therapeutic visits you have had with your child. DCPP will also provide documentation of all correspondence from the Division to you.
Most significantly of all, DCPP maintains ongoing contact sheets about which document everything the caseworker does on your case. Every time your case worker sees or talks to your child, the foster parents, and you, that discussion will be recorded in the contact sheet. Once a case is ready to go to trial, the contact sheets will thoroughly document every day in the life of your child - and you, almost to the hour! This is a good reason why you must be careful never to use abusive language to a caseworker or anyone else connected with your case. The Judge deciding your case will be reading all of these contact sheets, and you do not want him or her to get a negative impression of you from the contact sheets!
EvaluationsDCPP and your child's law guardian will ask the court to order you to attend an evaluation with a psychologist or other mental health expert. The Judge always will grant these requests. You may also be ordered to attend other medical or substance abuse evaluations. However, the most significant evaluations for your case will be the ones conducted by a psychologist.
Usually the court will order that the psychologist selected by DCPP conduct two types of evaluations. The first part is a psychological evaluation, to determine if your have any mental health issues that would prevent you from properly parenting your child if reunited. The other evaluation is called a bonding evaluation. The psychologist will observe your child with you, to evaluate the quality of your relationship with your child. The psychologist will also conduct a similar evaluation with your child and the current caregiver, The psychologist will determine if your child will suffer serious and enduring harm if the relationship with the current caretaker is severed to return the child to you.
These evaluations are not therapy sessions and are not confidential. DCPP's expert, and sometimes, the law guardian's expert, will prepare a report that will be used against you. Fortunately, your lawyer can arrange for a different expert to perform the same type of evaluation. If you are represented by OPR, your attorney can arrange for OPR to pay the expert fees.
In the best possible situation, the defense expert will disagree with the DCPP expert and will be able to recommend reunification, In my experience, many of my clients are much more comfortable talking to the defense experts that I provide for them, than they are with the DCPP expert. However, generally, most experts looking at the same facts in the case will come up with similar conclusions and your defense expert may not always help your case. Your lawyer does not have t present an expert to testify if he or she concludes that expert testimony will hurt your case instead of helping.
Your lawyer will want to put a defense expert on the stand, but remember, your lawyer cannot tell a psychologist what his testimony should be. Some clients do not understand why the defense expert does not recommend reunification but the fact is, your cooperation with services and your progress will determine what your expert will say. I do not like to proceed to trial without an expert but remember, DCPP will present a lot of evidence against you. So your lawyer will not want anything negative to be presented from your side.
How can I help my chances?
Always be cordial and cooperative with everyone associated with your case and never display anger to the judge, attorneys, case workers, service providers, foster parents or therapists. The worst thing you can do for your case is to display aggressive behavior. Never miss any visits with your child and always show that you love your child and can put his or her best interest above your own. Do the things you are required to do even if you do not agree with them.
DefaultsMake sure you attend every court hearing and evaluation. If you do not attend court, and regularly miss evaluations, DCPP can ask the court to enter default against you. If the Judge agrees, he or she can order a proof hearing instead of a full trial. At a proof hearing, the court will allow DCPP to present its evidence against you but you will not be allowed to present any evidence, experts, or witnesses at all.
If you have an emergency that requires you to miss court, contact your lawyer and case worker immediately. Your lawyer can ask the court to vacate default if you had a good reason for missing court. Make sure you can document the emergency that prevented you from attending court. If the court vacates default, you will have the right to a full trial. Although the DAG for DCPP can ask for default at any point, many judges will not grant default until the end of the trial, after DCPP has presented its case. Judges rarely default clients who are represented by counsel, but do not take that risk. You must appear at every court hearing.
If you do default, and the court terminates your parental rights at a proof hearing, you cannot appeal directly. Your lawyer must make a motion to vacate default first. For this reason, a default judgment terminating your parental rights is the worst possible outcome. So make sure you attend every court appearance and do not default.
Before you know it, you will be facing the day of reckoning - the day of trial will arrive. In my next post, I will be discussing how the trial proceeds, and what you can expect.