Wednesday, July 17, 2013

The Life of a DCPP Case, Part Ten - What to Expect at the Trial

What to Expect at the Trial

If your case has not been resolved by the trial date, you probably have been involved with the DCPP system for at least two years.  You are probably exhausted from all of the obligations that the court has imposed on you.  You may have been juggling your calendar to accommodate  all sorts of appointments for visits, therapy appointments, drug and alcohol treatment, court appearances, and meeting with your case worker and lawyer.  It can be a shock to the system when you realize that your trial is going to start tomorrow!

In the last few weeks, your lawyer has been scrambling too.  He or she is reviewing hundreds of pages of evidence, and analyzing it to see what objections would be appropriate at trial.   All DCPP records are admissible at trial; however, the documents in those records often contain hearsay statements that your lawyer will try to exclude.  Your lawyer will want the judge to exclude as much hearsay as possible.  However, since there is no jury in family court,  usually the Judge will decide to include most of the Division's evidence and give each document the appropriate weight.  Your lawyer at this point has prepared his or her exhibits, which will usually consist of the defense expert report, if it will help your case.  If your lawyer believes that the defense evaluations will help, he or she will have arranged for the psychologist who evaluated you to testify in your behalf.


The  Month Before Trial

Meet with your lawyer to decide if you should testify at trial.  You are not required to testify, but if you do not testify the Judge may think you have no defense.  If you do testify, anything you say can be subject to cross-examination, and the DAG will try to get you to say things that will not help your case.  Your lawyer will help you decide whether to testify and prepare your testimony if you do.  Also, if you have any other potential witnesses, let your lawyer know well in advance so that he or she can decide if this witness will help or hurt your case.   Remember, the Division will want to interview any witnesses you propose as part of discovery.  A witness you think may be helpful may actually hurt your case.

It is not unusual for your lawyer to all only his or her defense expert at the trial.

The Week Before Trial

  • If you have not done so already, arrange for time off from work to attend every day of your trial.  The trial may not necessarily take place on consecutive days.  You cannot miss any days of your trial.

  • Make sure that you truly wish to go to trial.  You will not like what you hear during the trial and the DAG will bring up as many facts as possible to show that you cannot parent your child.  Remember that although this is not a criminal prosecution, it can feel that way.  Talk to your therapist, if you have one, if you are unsure about your emotions about the trial.

  • Decide what you will wear each day of the trial.   If an outfit is not appropriate for a house of worship, it is not appropriate for court.

The Day Before Trial

  • Think of any last-minute questions for your lawyer.  If there are specific questions you want him or her to ask the DCPP witnesses, let your lawyer know.

  • You may want to bathe or shower the night before, so you do not have to do this in the morning, especially if you have to be in court at 8:30 AM!  Now more than ever it is important to have a clean appearance because this is the last time to make a positive impression with the Judge.   Again, it is also very important to dress appropriately.

 The Day of Trial

  • Arrive as early as possible.  Usually the court will allow you a few minutes to talk to your lawyer before the trial begins.   You should bring a pen and paper with you, but your lawyer will probably have it for you.  Remember, your lawyer is going to be focusing on the proceedings and will have questions prepared for each witness.  You will probably disagree with the testimony you hear but never interrupt the proceedings.  I always tell my clients I need to focus on the testimony, so I ask clients not to whisper in my ear.   Instead, I ask my clients to write their questions on a piece of paper.   That way my clients can let me know if they want me to ask a witness a specific question on cross-examination.

What will happen at the Trial

The Judge will begin the trial and may or may not allow opening statements from all the lawyers.

The Deputy Attorney General (DAG) will present the Division's case first.  Typically they will present the case workers who have been involved in your case and the expert who performed the Division's evaluations of you.  The Division may also call counselors, service providers, neighbors, or relatives who have knowledge of your case.  Again, you must not interrupt the proceedings even if you are angry about something a witness says.  If you disagree with the testimony, or if you need to point something out to your lawyer, write a note on the piece of paper. 

After your child's law guardian cross-examines each witness, your lawyer will have the opportunity to cross-examine each witness. In cross-examination, your lawyer will try to point out anything positive the witness might have said.

Once the DAG has presented all the witnesses in the Division's case, the Law Guardian will present any witnesses he or she has.  At that point, your lawyer will present your case.

Technically, your lawyer does not have to prove anything because the Division has the burden of proof by clear and convincing evidence.  This means that your lawyer does not have to present any evidence or witnesses.  However, your lawyer does want to present evidence in your behalf.  Usually your lawyer will want to call the expert who did a defense evaluation for you.  If the defense expert disagrees with the other experts who testify in the case, the Judge will have to decide who is more reliable when he or she considers a decision.   Again do not worry if the defense expert is the only witness your lawyer chooses to present - I have won one a trial in which the defense expert I called was my only witness, and his report was my only exhibit.

After all the attorneys have presented your case, the Judge will ask for either oral or written summations.  The Judge will want to consider all the evidence and usually will not make a decision as soon as the trial ends.  Your lawyer will let you know when the Judge will be making a decision.

The Judge must make a decision based on clear and convincing evidence.  If you watch TV court shows such as "Judge Judy," you may know that the standard of proof in civil court is "preponderance of the evidence."  That means that  whichever side has "tipped the scales" in its direction will prevail, no matter how slightly.  You may also know that in criminal cases, the standard of proof is "beyond a reasonable doubt."  That is why it is very difficult for a prosecutor to prove a criminal case.  In DCPP court, the standard is something in the middle called "clear and convincing evidence."  That is a very high standard to meet, but not as high as the one required in criminal court.    For example, if you are accused of physically abusing your child, the prosecutor may decide not to prosecute because he or she cannot prove the case beyond a reasonable doubt.  However, the Division, using the same evidence, may be able to prove that your parental rights should be terminated by the "clear and convincing" standard even if you were not convicted, or even charged, with a criminal act.

The Judge's Decision

The Judge, after reviewing all of the evidence, will make the decision whether or not to terminate your rights. The Judge may take several weeks or longer to make his or her decision.  When the Judge is ready to announce his decision he or she will notify your lawyer and schedule a date to give his or her decision.    If the Judge decides to terminate your rights, you can appeal your case.  I'll discuss appeals in my final article in this series.  If the Judge does not terminate your rights, he or she can reinstate the previous litigation and order a gradual reunification of your child with you, following extended day and overnight visits.  Or the Judge can Order the Division to implement a different permanency plan such as placement with a relative or Kinship Legal Guardianship. 

If the Judge decides to terminate your rights, you can appeal your case if you disagree with the court's decision.  I'll discuss appeals in my final article in this series.  If you are represented by the Office of Parental Representation, your lawyer will give you documents about your right to appeal.

If the Judge terminates parental rights, your lawyer can ask the Judge to order a final visit with your child.  You can also take advantage of counseling that the Division can provide. 

If you want to appeal your case, your lawyer can ask  the Judge to order that visits with your child to continue while your appeal is pending.  Your lawyer can also ask the Judge to order that no adoption proceedings take place until your appeals are exhausted, and ask that all activities designed to prepare him or her for adoption be stopped while the appeal is pending.  

Contact with Your Child after Trial

After the trial, you can only have contact with your child if the foster parents agree to such contact.  You cannot come back to court to and ask a judge to enforce any promises  of contact that are made to you.  DCPP an assist in facilitating a meeting with the foster parents, but they may not wish to discuss continued contact with you.  although many adoptive parents will welcome continued contact, there are also adoptive families who will want no contact with the birth parent.

Whether you surrender your parental rights or your rights are terminated at trial, you have the right to remain current on the adoptive registry so your child can find you in the future if he or she wishes. You can contact them at:

DCPP Adoption Registry
P.O. Box 717
Trenton, NJ 08625-07017
609-292-8816 or 609-984-6800

If you choose to place your name in the registry, you must keep your contact information current at all times so your child will be able to locate you.

In the next and final installment of "The Life of a DCPP Case" I will discuss appeals in detail.

Next: DCPP Appeals


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