If the parents lose the adjudication phase, or if they plead at the adjudication phase, the next hearing is the Dispositional Hearing.
This is probably the most important hearing in the entire juvenile dependency process. And, we must remember, if you lose the adjudication trial, this does NOT mean you will lose the dispositional hearing. And, if you win this hearing, the children will be returned to your custody, even though you lost trial #1.
At the dispositional hearing, the social worker must prove by “clear and convincing evidence,” that the parents are a “substantial danger” to the children; and that there are no less restrictive alternatives to removing the children from the parents’ home.
Many times, I see parents agreeing to “out of home” placement, when they have a good shot at winning the contested dispositional hearing.
I think this happens because many people act, and believe, that the adjudication and dispositional hearings are one in the same; but they are NOT. They have different legal tests, and different burdens of proof.
- The first test in the adjudication hearing is the social worker proving you are a “substantial risk” to the children, by the lowest burden of proof – preponderance of evidence.
- The second test is at the disposition hearing. The social worker must prove that you are a “substantial danger” to the children, by the second highest burden of proof – clear and convincing evidence.
- First of all, to be a “substantial danger” to a child, the evidence must prove that you are a bad, really bad, person.
- Second, by the time you reach this hearing, most parents have taken classes or counseling to address the problems that originally brought them to the attention of the juvenile court.
- Third, clear and convincing evidence is a heightened standard of evidence; and in theory, it should be harder for the social worker to prove.
Many times the adjudication and the disposition hearings are done together, at the same time. And, if that’s the case, you must know this before you lay out your strategy.
- It will affect the witnesses you may want to bring to court. For example, if the court is going to do both hearings together, you’d want to bring in your instructors and counselors to show how you’ve remediated the problems which brought you to the court.
- It will affect the documentary evidence you want to show the judge.
Otherwise, if these hearings are done separately, and sometimes you should request this of the judge, these hearings will be similar to the adjudication hearing mentioned earlier.
Typically, a separate disposition hearing starts out by the court asking the County Counsel, the social worker’s attorney, if h/she has any documentation to offer into evidence. Most of the time, this consists of the social worker’s reports submitted thus far in the case.
- The court then asks defense counsel if there is any objection to the reports being admitted into evidence.
- Then the county counsel calls witnesses, after which, each attorney has a chance to cross-examine the witnesses as they are called.
- Then the minor’s counsel goes through the same steps with documentary evidence and witnesses, and his/her witnesses are cross examined.
- Then the parents’ attorneys go through the same steps with documentary evidence and witnesses, and his/her witnesses are cross examined.
- Then the social worker and her attorney may call “rebuttal” witnesses, to contradict what the evidence and the witnesses the parents have presented.
- After all of this, the attorneys may give the judge closing arguments. Many times, the judge does not want to hear closing arguments, but it’s up to each individual judge.
I should mention at this point, that the judge may ask questions of any witness during the proceedings.
Where the minor’s attorney is against the parents, time and consideration should be taken as to how parents’ attorneys will deal with this situation. The possibilities are almost endless; but it should be carefully discussed with your attorney.